COMMISSION STAFF WORKING DOCUMENT […] Accompanying the document The Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee on the application 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 (recast)
Date: 2025-06-02
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: civil procedure, civil rights, commercial law, enforcement of ruling, judicial cooperation in civil matters in the EU, jurisdiction, patent law, private international law, right to justice

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 2.6.2025  SWD(2025) 135 final  COMMISSION STAFF WORKING DOCUMENT […]                                                                                                                                                                                                                                        Accompanying the document The Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee on the application 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 (recast)                                  {COM(2025) 268 final}  
 
 
PART 1 – DETAILED ANALYSIS OF SELECTED ITEMS 

1. SCOPE OF APPLICATION 

1.1. Cross-border case 

Article 81 TFEU, the legal basis of the Regulation, provides for the development of ‘judicial 
cooperation in civil matters having cross-border implications’. The Regulation does not have 
a  specific  provision  clarifying  that  it  applies  only  in  cross-border  situations,  but  recital  (3) 
contains language similar to that of Article 81 TFEU. 

The lack of a specific provision on this key aspect of the Regulation prompted the CJEU to 
interpret  this  requirement.  Historically,  the  Court  has  had  a  broad  interpretation  of  this 
element  by  looking  at  objective  factors  that  indicate  the  international  character  of  a  legal 
dispute, beyond the domicile of the parties involved (see, for instance, judgments of Owusu 
(C-281/02), Hypoteční banka (C-327/10), Maletic (C‑478/12)).While in some cases the Court 
may have focused more on the domicile of at least one of the parties in a different Member 
State than the one of the court seised (see PARKING (Joined Cases C-267/19 and C-323/19), 
Commerzbank  (C-296/20),  Generalno  konsulstvo  na  Republika  Bulgaria  (C-280/20)),  the 
Court has reaffirmed its  traditional position in the most recent  cases (IRnova, FTI Touristik, 
Inkreal, BSH). Consequently, it is well-established that the international element necessary to 
bring  a  case  under  the  scope  of  the  Regulation  may  result  both  from  the  location  of  the 
defendant’s domicile and from the subject matter of the proceedings, which may be located in 
a  third  State,  provided  that  that  situation  is  such  as  to  raise  questions  before  a  court  of  a 
Member  State  relating  to  the  determination  of  international  jurisdiction.  On  that  basis,  in 
Inkreal  (C-566/22)  the  Court  held  that  a  cross-border  element  is  present  where  the  parties 
established  in  the  same  Member  State  chose  to  confer  jurisdiction  to  the  courts  of  another 
Member State in the absence of any other international element, whereas in FTI Touristik (C-
774/22)  the  Court  confirmed  that  a  dispute  between  two  parties  domiciled  in  the  same 
Member State concerning a package holiday to  another country falls under the scope of the 
Regulation.  

The  Study  revealed  that  a  majority  of  Member  States  did  not  find  the  application  of  this 
element problematic. The survey equally revealed that generally speaking national courts look 
either at personal elements (the domicile and/or habitual residence of the parties in different 
Member States) or at objective ones, such as the place of performance of the obligation under 
dispute (BG, CZ, ET), the place where the damage occurred or may occur (CZ, ET) or simply 
whether the dispute is not entirely domestic (DE). However, in DE and HR it seems that the 
domicile  of  the  parties  is  the  main  factor  looked  at  when  deciding  whether  a  case  is  cross-
border.  

While  the  cross-border  application  of  the  Regulation  does  not  seem  to  pose  problems,  the 
Study reveals a lack of uniformity in the application of this provision. This could be also the 
result of the fact that other EU instruments1 that have the same legal basis contain a definition 
of cross-border cases which focuses on the domicile/habitual residence of the parties.  

1   See, for example, Regulation (EC) No 1896/2006 of the European Parliament and of the Council creating a 
European order for payment procedure, OJ L 399, 30.12.2006, p. 1 or  Regulation (EC) No 861/2007 of the 
European  Parliament  and  of  the  Council  establishing  a  European  Small  Claims  Procedure,  OJ  L  199, 
31.7.2007,  p.  1.  It  needs  to  be  taken  into  account  that  these  instruments  create  a  separate  EU-autonomous 
procedure for cross-border cases only and that it needs to be unmistakably clear from the outset whether this 
procedure is available for a given case; this may plead in favour of a simpler and more restrictive definition 
exclusively based on the domicile of the parties, an easily verifiable criterion.  

1 

 
 
 
However, as the recent judgments in Inkreal (C-566/22) and FTI Touristik (C-774/22)  show, a 
case can have cross-border character and thus  can fall under the scope  of application  of the 
Regulation  even  where  the  parties  are  domiciled  in  the  same  Member  State.  Furthermore, 
recently it was stipulated in Article 5(1) of the Anti-SLAPP Directive2 that for the purpose of 
that instrument ‘a matter is considered to have cross-border implications unless both parties 
are domiciled in the same Member State as the court seised and all other elements relevant to 
the situation concerned  are located only in  that Member State’. Therefore, the focus on the 
domicile of the parties has the potential of failing to  capture some cases under the scope of 
application  of  the  Regulation  and,  thereby,  of  depriving  the  Regulation  of  its  intended 
effectiveness  (effet  utile). This  is  the  case  primarily  for  the  chapter  on  jurisdiction.  In  other 
words, while a case can safely be considered to be cross-border if the parties are domiciled in 
different  Member  States,  the  case  law  shows  that  there  are  also  other  elements  which  can 
point to the cross-border implications of a dispute.  

1.2. Civil and commercial matters 

Ever since this notion was introduced in the 1968 Brussels Convention3, the most important 
question which was raised is under which conditions an action to which a public authority is a 
party can be classified as civil and commercial.  

The Court has given a constant reply to this question ever since the first case on this issue in 
1976  -  LTU  v  Eurocontrol  (C-29/76).  First,  the  Court  considers  that  this  concept  should  be 
interpreted autonomously, not in accordance with a particular national legal system, but rather 
by  reference  ‘to  the  objectives  and  scheme  of  the  convention  and,  secondly,  to  the  general 
principles which stem from the corpus of the national legal systems’. Second, the Court has 
consistently considered that whether an action to which a public authority is a party would fall 
under the scope of application depends on whether that authority acted in the exercise of its 
public powers (acta iure imperii). If it did, the case would not be captured by the Regulation. 
This  established  case  law  prompted  the  legislator  to  amend  Article  1  of  the  Regulation  in 
order to bring this clarification.  

The  Study  revealed  that  a  vast  majority  of  the  respondents  found  no  issue  with  the 
interpretation  of  the  notion  of  ‘civil  and  commercial  matters’.  Only  some  Member  States 
seem to have certain difficulties to reconcile this well-established case law of the Court with 
national  concepts,  in  particular  the  concept  of  public  interest,  which  is  essential  in  these 
Member  States  in  order  to  decide  whether  an  authority  acted  in  the  exercise  of  its  public 
powers. Finally, in two isolated cases an interpretation in accordance with national law seems 
to have been chosen.  

This well-established concept has been consistently interpreted for many years by the CJEU 
and by national courts and, despite some difficulty inherent in the interpretation of any legal 
concepts, in particular those that require an autonomous interpretation, the use of this  scope 
provision in practice seems to function well.   

1.3. The exclusion of insolvency-related claims 

The  exclusion  of  insolvency  proceedings  from  the  scope  of  application  has  raised  some 
questions as to which types of claims in the context of insolvency are covered. 

2   Directive  (EU)  2024/1069  of  the  European  Parliament  and  of  the  Council  of  11 April  2024  on  protecting 
persons who engage in public participation from manifestly unfounded claims or abusive court proceedings 
(‘Strategic lawsuits against public participation’), OJ L, 2024/1069, 16.4.2024. 

3   See the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial 

matters, OJ L 299, 31.12.1972, p. 32 (hereinafter, ‘the Brussels Convention’).  

2 

 
 
 
The CJEU has interpreted this exclusion already under the Brussels Convention. The formula 
developed in Gourdain (133/78), still valid today, states on this issue that “it is necessary, if 
decisions  relating  to  bankruptcy  and  winding-up  are  to  be  excluded  from  the  scope  of  the 
Convention, that they must derive directly from the bankruptcy or winding-up and be closely 
connected  with  the  proceedings  for  the  ‘liquidation  des  biens’  or  the  ‘reglement  judiciaire’ 
(para. 4 of the judgment). A further clarification was brough by the CJEU in the more recent 
case Nickel  &  Goeldner  Spedition  (C‑157/13), where it specified that in  deciding whether a 
claim  is  insolvency-related  one  has  to  consider  the  legal  basis  of  the  right  or  the  obligation 
under dispute, namely whether ‘the basis of the action finds its source in the common rules of 
civil and commercial law or in the derogating rules specific to insolvency proceedings’ (para. 
27 of the judgment).  

Since  2000  the  Union  has  rules  specific  to  insolvency  proceedings  laid  down  in  the 
Insolvency Regulation4. These rules should be interpreted as much as possible so as to avoid 
overlap or gaps with the Regulation (see Nickel & Goeldner Spedition (C‑157/13) and Feniks 
(C-337/17)).  This  means  that  insolvency-related  proceedings,  excluded  from  the  scope  of 
application of the Regulation, are to be covered by the Insolvency Regulation5.  

The Study showed that the majority of respondents did not see any issues with the delineation 
of insolvency-related claims. While the majority of Member States had little or no case law on 
this  matter  or  the  application  of  the  CJEU  interpretation  did  not  raise  any  issues,  some 
specific  issues  were  mentioned  in  this  context  related  for  instance  to  restructuring 
proceedings,  claims  brought  by  the  employees  in  the  context  of  insolvency  proceedings  or 
parallel proceedings.  

Despite the fact that the delineation of insolvency-related claims seems to pose some practical 
questions that generate cases both at the national and at the CJEU level, generally speaking it 
is  rather  clear  how  to  interpret  this  exclusion  in  practice  and  the  issues  detected  regard 
specific  matters  have  been  solved  on  a  case-by-case  basis,  taking  into  account  the  existing 
rule and its interpretation6. 

2. JURISDICTION 

2.1. Derived special jurisdiction (Article 8) 

Article  8  of  the  Regulation  was  not  amended  during  the  recast  and  aims  at  facilitating  the 
sound  administration  of  justice,  reducing  the  possibility  of  concurrent  proceedings,  and 
consequently  avoiding  irreconcilable  decisions.  In  a  wider  perspective,  the  Study  highlights 
that academics and practitioners have welcomed two developments related to Article 8(1): the 
extended  reach  of  Article  8(1)  through  the  amendment  of  Article  20(1)  that  enabled  the 
employees to rely on Article 8(1) when suing multiple employers; and the confirmation by the 
CJEU  in  CDC  Hydrogen  Peroxide  SA  (C-352/13)  and  numerous  subsequent  judgments  that 
the  victims  of  competition  law  infringements  may  sue,  on  the  basis  of  Article  8(1),  all  the 
tortfeasors in a Member State where any one of them is domiciled. 

4   See Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings OJ L 160, 30.6.2000, 
p. 1, repealed by Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 
on insolvency proceedings OJ L 141, 5.6.2015, p. 19. 

5   See also Recital 7 of the Insolvency Regulation.  
6   Some  issues,  such  as  the  coverage  of  restructuring  proceedings  by  the  Insolvency  Regulation,  could 

conceivable be addressed in the Insolvency Regulation.  

3 

 
 
 
The  Study  however  stresses  that  national  courts  face  some  difficulties  when  applying  the 
connectedness requirement in Article 8(1). In particular, it has been suggested that the CJEU 
has established rather strict rules for the assessment of connectedness7, which at the same time 
are  rather  vague  and  leave  considerable  room  for  uncertainty. As  a  result,  it  is  claimed  that 
national  courts  are  left  with  a  difficult  task  to  strike  a  balance  between  the  requirement  to 
examine the criteria of connectedness already when deciding on jurisdiction on one hand, and 
to ensure the predictability of rules on jurisdiction on the other hand.  

The  CJEU  has  already  provided  some  clarification  of  the  connectedness  criterion  in Article 
8(1)  in  the  context  of  competition  cases.  Most  recently,  in  judgment  Athenian  Brewery  and 
Heineken  (C-393/23), the CJEU clarified that  under Article 8(1) of the Regulation, a parent 
company and its subsidiary can be jointly sued at the place where one of them is domiciled if 
the  parent  company  exercises  decisive  influence  on  the  economic  activity  of  the  subsidiary. 
The Court has also reiterated that concepts from public enforcement, such as the concept of 
joint  and  several  liability  of  all  legal  entities  that  are  part  of  the  infringing  undertakings, 
applicability of the presumption of decisive influence also apply for private enforcement and 
are hence relevant to determine jurisdiction. 

Nevertheless,  similar  connectedness-related  questions  are  being  asked  in  other  pending 
referrals  to  the  CJEU  from  the  Dutch  courts  dealing  with  the  power  cables  and  the  Italian 
cardboard  cartel  in  Electricity  &  Water Authority  of  the  Government  of  Bahrain  and Others 
(Joined Case C-672/23 and C-673/23). In these referrals, just like in  case  Athenian Brewery 
and  Heineken  (C-393/23)8,  the  Dutch  courts  specifically  ask  the  CJEU  to  clarify  the 
interpretation of the connectedness requirement in situations that differ from those previously 
brought before the CJEU.  

These  referrals  show  that  it  remains  difficult  to  establish  close  connection  in  certain  cases. 
Moreover, the referrals also reveal that the predictability of jurisdiction in competition cases 
is  a  matter  of  concern9.  In  particular,  the  application  of  Article  8(1)  could  result  in  a 
multiplication of competent courts insofar as each legal entity that is part of an undertaking 
that  has  infringed  Article  101  TFEU  is  jointly  liable  for  the  damage.  As  a  result,  a  large 
number of courts might be competent to deal with a particular matter. For instance, one of the 
questions at issue in Electricity & Water Authority of the Government of Bahrain and Others 
is  whether  a  claim  that  is  strongly  connected  with  Italy  can  be  brought  in  the  Netherlands 
because one of tortfeasors has an intermediate holding in the Netherlands, which is a case for 
many international companies for tax purposes. 

7   In  assessing  the  close  connection  and  the  risk  of  irreconcilability  of  judgments  rendered  in  separate 
proceedings,  the  CJEU  holds  that  the  fact  that  there  is  a  divergence  in  the  outcome  of  the  dispute  is  not 
sufficient to classify the decisions as contradictory. It is further required that the divergence must also arise in 
the context of the same situation of law and fact. 

8   In this case, the Dutch court asked whether the conclusions of CDC Hydrogen Peroxide with regard to several 
defendants constituting different undertakings which the Commission had decided that all committed a single 
and  continuous  infringement  of  Article  101(1)  TFEU  could  be  extended  to  a  situation  where  one  of  the 
defendants  is  the  parent  company  of  a  legal  person  held  liable  for  an  infringement  of  the  European 
competition  rules  in  a  decision  adopted  by  a  national  competition  authority.  Just  to  remind  that  in  CDC 
Hydrogen Peroxide, the CJEU ruled that the requirement of a close connection was fulfilled, i.e. the condition 
of the  existence of the same factual and legal situation is  satisfied, in the context of an action for damages 
seeking a declaration that several defendants constituting different undertakings which the Commission had 
decided had all committed a single and continuous infringement of Article 101(1) TFEU. 

9   In  Smurfit  Kappa  Europe  and Others  and  Electricity  &  Water  Authority  of  the  Government  of  Bahrain 
and Others, the referring court explicitly asks whether the foreseeability is a separate criterion for the national 
court  to  assess  when  applying  Article  8(1)  of  the  Regulation,  i.e.  whether  the  principles  developed  in 
paragraph 23 of CDC Hydrogen Peroxide must be applied to other types of competition cases. 

4 

 
 
 
In addition to the aforementioned difficulties, the findings of the Study and the JUDGTRUST 
project suggest that some concerns are still being raised regarding the potential consequences 
of an overly stringent application of Article 8(1) in intellectual property disputes, particularly 
following the judgment in Roche Nederland (C-539/03). Although the CJEU appears to have 
moved  away  from  this  approach  in  Painer  (C-154/10),  where  it  held  that  the  application  of 
Article  8(1)  is  not  prevented  simply  because  actions  against  multiple  defendants  for 
substantially  identical  copyright  infringements  are  based  on  different  national  legal 
frameworks  across  Member  States,  the  findings  of  the  JUDGTRUST  project  indicate  that 
academic opinions still remain divided on whether this requirement still holds significance in 
cases involving intellectual property rights10.  

In  conclusion,  Article  8,  by  and  large,  is  applied  without  major  difficulties.  However,  the 
Study  and  recent  referrals  to  the  CJEU  show  that  the  application  of  Article  8(1),  and,  in 
particular,  of  the  connectedness  requirement,  still  raises  interpretative  questions.  This  is 
particularly  true  in  disputes  relating  to  competition  law  and  intellectual  property  rights. 
However, the CJEU is expected to provide further clarity on these matters.  

2.2. Protective jurisdiction  

2.2.1. Matters relating to insurance 

A well-balanced system  of jurisdiction rules in insurance matters, except for minor editorial 
adjustments, was left intact by the Regulation. The small number of referrals for preliminary 
rulings  from  national  courts,  along  with  the  responses  from  Member  States,  indicates  that 
there are no significant issues concerning the application of these rules. 

Nevertheless,  it  appears  that  several  specific  difficulties  raised  prior  to  the  recast  of  the 
Regulation, but not addressed by it, persist. As questions referred to the CJEU show, national 
courts face difficulties when: 

a)  delineating  the  material  and  personal  scope  of  application  of  the  rules  on  insurance 

contracts; and 

b)  qualifying the claims arising in a complex, often tripartite, relationship. 

As far as the personal  scope of application is  concerned, Articles 13 (direct  actions) and 15 
(choice-of-court agreements) appear to raise most questions.  

In its case law on these matters, such as in judgment in BT v Seguros Catalana Occidente (C-
708/20),  the  CJEU  clarified  that  a  claim  brought  by  the  injured  person  against  the 
policyholder or the insured cannot be automatically considered to be an insurance claim and 
held  that  an  injured  person  cannot  bring  an  action  against  the  insured  on  the  basis  of 
Article 13(3) of the Regulation.  

It  also  follows  from  the  case-law  (see  inter  alia  Balta  (C-803/18),  MMA  IARD  (C-340/16), 
T.B. y D (C-393/20), CNP (C-913/19) that the mere existence of an insurance contract is not 
sufficient to trigger the application of the rules in Section 3 and that the application of those 
rules  should  be  restricted  to  parties  in  need  of  protection.  According  to  the  case-law,  a 
professional  in  the  insurance  sector  is  a  person  who  carries  out  a  professional  activity 
recovering insurance indemnity claims against insurance companies, in his or her capacity as 
contractual  assignee  of  such  claims;  a  social  security  institution,  which  is  the  statutory 
assignee  of  the  rights  of  the  person,  cannot  be  considered  as  such.  In  contrast,  where  the 
statutory  assignee  of  the  rights  of  the  directly  injured  party  may  himself  be  considered  a 

10  For more details see the Handbook of JUDGTRUST project, pages 202-204. 

5 

 
 
 
weaker party such an assignee should be able to benefit from special rules on the jurisdiction 
of courts laid down in those provisions. This is particularly true in the situation of heirs of the 
injured person and of an employer, which continued to pay the salary of its employee absent 
as the result of a road traffic accident and who has been subrogated to the employee’s rights 
with regard to the company insuring the civil liability resulting from the vehicle involved in 
that accident. 

2.2.2. Individual contracts of employment 

Section 5 of the Regulation  contains a system  of rules that aim at  protecting the employees 
under individual contracts of employment.  

A  recurrent  issue  relating  to  the  application  of  those  rules  identified  by  the  Member  States 
relates to the determination of the place where or from where the employee habitually carries 
out his or her work (‘locus laboris’) of highly mobile workers such as pilots, flight attendants 
and other crew members or truck drivers for the purposes of Article 21(1)(b)(i).  
The CJEU has adopted a broad interpretation of the locus laboris. In line with that case-law11, 
the national courts must establish the effective centre of a highly mobile employee’s working 
activities based on various factors, such as the ‘home  base’ of the airline staff. The solution 
provided by the CJEU however seems to leave open some questions of interpretation. 

The criteria used by the national courts for this purpose diverge. In some Member States (AT, 
BE,  EL,  FR,  IE),  the  ratio  spent  in  one  Member  State  is  pivotal  to  determining  where  the 
worker habitually carries out his or her work. In some others (IE, NL, PL), in addition to the 
amount of working time spent in one Member State, the place where a worker starts and ends 
their working day, the place where he or she receives work instructions, the place where the 
aircraft  is  stationed,  and  the  place  where  the  family  of  the  worker  reside  are  taken  into 
account.  Finally,  few  Member  States  (IT,  EL)  consider  that  the  locus  laboris  of  mobile 
workers coincides with the place where the business that engaged the employee is situated, for 
example,  the  seat  of  the  company  for  tax  purposes  or  the  location  of  the  employer’s 
infrastructure.  In  other  words,  in  the  most  complicated  cases,  some  national  courts  tend  to 
rely,  directly  or  indirectly,  on  the  fallback  criterion  of  the  seat  of  business  in  Article 
21(1)(b)(ii).  This  may  highlight  the  risk  of  a  more  systematic  application  of  the  subsidiary 
criterion  –  place  of  the  business  –  to  highly  mobile  workers  due  to  the  impossibility  to 
establish the locus laboris contrary to the intention of this only being a fall-back option. 

The  Study  and  the  National  Reports  identified  some  additional  difficulties  relating  to  the 
application  of  the  rules  in  Section  5,  reported  by  a  small  number  of  Member  States. Those 
difficulties mainly concern the determination of the habitual place of work in cases where the 
‘contractual’ place differs from  the effective one  (LU, EL);  and the qualification  (or not)  of 
certain  contracts,  as  ‘individual  employment  contracts’  in  accordance  with  the  criteria 
established in the case-law of the CJEU12 (CY, CZ, DE, MT, PT, SL).  

Future case-law can be expected to further clarify the interpretation of the rules in Sections 3 
and 5.  

2.3. Prorogation of jurisdiction (Articles 25 – 26) 

The rules on the prorogation of jurisdiction are not new in the Brussels ‘regime’; they were 
introduced by the very Brussels Convention and survived all subsequent revisions.  

11  See the summary of the case law on p. 166-167 of the Study. 
12  See, for example, judgments in Holterman Ferho Exploitatie and Other, C-47/14, and Bosworth and Hurley, 

C-603/17. 

6 

 
 
 
Compared  to  its  predecessors,  the  Regulation  has  further  enhanced  party  autonomy  and  the 
impact  of  choice  of  court  agreements.  First,  the  Regulation  removed  the  requirement  for  at 
least one of the parties to a choice of court agreement to be domiciled in a Member State thus 
widening the territorial scope of application of Article 25. In addition, in its recent judgment 
in Inkreal13 the CJEU further clarified that the applicability of the Regulation can be triggered 
by the mere choice of the courts of another Member State, even though the parties are both 
domiciled in the same Member State and that no other connecting factor links the case to the 
Member States whose courts were chosen.  

Second,  the  Regulation  inserted  into  Article  25  provisions  on  the  law  governing  the 
substantive validity of prorogation clauses and on the separability or severability of a choice 
of court agreement.  

The basic rule on tacit prorogation in Article 26(1) was not  amended during the recast. The 
Regulation  has  only  inserted a new provision  in Article 26(2)  to  adjust that  rule in disputes 
involving  a  weaker  party,  following  the  suggestion  of  the  CJEU  in  ČPP  Vienna  Insurance 
Group (C-111/09)14: the court seised is now obliged to ensure that a weaker party (defendant) 
is informed of the right to contest jurisdiction and of the consequences of failing to do so. 

Last, but not least, the Regulation amended the lis pendens rule in Article 31(2) with a view to 
enhancing the effectiveness of choice of court agreements. The non-designated court is now 
required to stay the proceedings in  favour of the designated  court even if the latter court is 
seised second. However, since that provision establishes no deadline for the court to stay the 
proceedings,  significant  delays  can  be  encountered  in  practice  as  it  was  the  case  in  the  so-
called  Airberlin15  case  where  it  took  the  court  in  Berlin  almost  14  months  to  stay  the 
proceedings as prescribed by Article 31(2). 

According to the Study, most of the Member States are generally satisfied with the operation 
of  the  rules  governing  explicit  or  tacit  prorogation  of  jurisdiction.  In  none  of  the  Member 
States  has any increase  of litigation based on choice of court agreements been noticed. The 
current  regime  of  the  Regulation  is  further  reinforced  by  the  2005  Hague  Judgments 
Convention,  which  applies  to  exclusive  jurisdiction  agreements  designating  the  courts  of 
other contracting States. 

Nevertheless,  some  Member  States  raised  some  issues  relating  to  the  application  of  both 
Articles 25 and 26. 

2.3.1. Article 25 

Despite the CJEU has already provided some guidance16, some Member States still consider 
assessing  the  substantive  validity  of  choice  of  court  agreements  and  their  effects  on  third 
parties  to  be  the  most  challenging  aspects  of  applying  Article  25.  These  difficulties  are 
highlighted by several recent referrals to the CJEU. 

For example, in its referral in case E. B.SP. (C-682/23), the Romanian court doubts whether 
the requirement of third-party consent to the prorogation of jurisdiction is fulfilled in the case 

13  However, this did not prevent the Austrian court from referring a question to the CJEU in case C-540/22 to 
clarify  whether  Inkreal  rule  applies  in  situations  where  both  parties  to  the  choice  of  court  agreement  are 
domiciled in third country (a Member State at the moment of conclusion of the agreement) and the choice of 
court and of applicable law are the sole criteria that link the dispute in the main proceedings to the EU. 

14  Paragraph 32. 
15  Etihad  Airways  PJSC  v  Flöther  [2020]  EWCA  Civ  1707;  Bundesgerichtshof,  15  June  2021,  II  ZB  35/20, 

DE:BGH:2021:150621BIIZB35.20.0. 

16  See, among others, the recent judgment in Maersk (Joined Cases C-345/22 to C-347/22). 

7 

 
 
 
of  an  assignment  of  claim  agreement  where  there  is  no  full  succession  to  the  original 
contracting party’s rights and obligations.  

Likewise, in its referral in case Societa Italiana Lastre (C-537/23), the French Supreme Court 
asked  the  CJEU  to  clarify  what  the  ‘substantive  validity’  referred  to  in  Article  25(1) 
encompasses  and  whether  asymmetrical  choice  of  court  clauses  could  be  regarded  as 
incompatible  with  that  Article.  In  addition,  the  French  court  asked  which  law  has  to  be 
applied to determine the validity of the choice of court clause in cases where the court seized 
is  not  the  one  designated  by  the  parties  and  whether  that  law  encompasses  conflict  of  laws 
rules17.  

Likewise, despite the CJEU has already provided some useful guidance first  in El Majdoub 
(C-322/14) as regards online contracts concluded by means of a ‘click-wrapping agreement’, 
and later in Tilman (C-358/21) as regards the validity of a jurisdiction clause included in the 
general terms and conditions set out on a web page, to which the B2B contract signed by the 
parties  make  reference  via  a  hyperlink  text  without  box-ticking  mechanism,  some  Member 
States still report uncertainties over the formal validity of choice of court clauses, in particular 
in  cases  concerning  clauses  contained  in  general  terms  and  conditions  attached  to  invoices, 
and those contained in online contracts.  

Future case-law can be expected to provide further clarity on the interpretation of Article 25. 

2.3.2. Article 26 

The  National  Reports  of  the  JUDGTRUST  project  show  that  opinions  diverge  on  the 
interpretation of Article 26 in general, and of its newly introduced paragraph 2 in particular. In 
some Member States the prevailing  view is  that a violation of the obligation  of the court in 
Article  26(2)  presents  a  ground  to  refuse  the  recognition  and  enforcement  under  Article 
45(1)(e)(i). In others, a judgment rendered in violation of Article 26(2) does not qualify as a 
ground  to  refuse  the  enforcement.  In  several  Member  States  both  views  are  put  forward  by 
different courts.  

A similar divergence of views exists in respect of the personal scope of application of Article 
26. Most Member States apply this Article regardless the domicile of the defendant, but some 
others  (FR,  SE)  consider  that Article  26  only  applies  where  the  defendant  is  domiciled  in  a 
Member State due to the lack of indications in Article 6(1) in this respect.  

2.3.3. Conclusion 

In conclusion, most Member States are largely satisfied with the operation of Articles 25 and 
26. The case-law of the CJEU provides useful guidance for the application of these Articles, 
including  for  online  contracts.  Nevertheless,  certain  residual  uncertainties  relating  to  the 
operation of those Articles were reported by the Member States or raised in the referrals to the 
CJEU. It could  thus  be further explored whether, for example,  there is  a  need to  codify  the 
requirements laid down by the CJEU in respect of the effect of the choice of court agreements 
on third parties or to clarify the effects of violation of the court’s obligation in Article 26(2). 

17  In its judgment of February 27, 2025, the CJEU ruled that the validity of asymmetric choice of court clause is 
covered by the Regulation, and that, in principle, such clause is valid, as long as it is limited to the courts of 
EU or Lugano States. Moreover, the CJEU clarified that the  validity of the choice  of court clauses is to be 
assessed in light of autonomous criteria without any reference to national law. 

8 

 
 
 
3.  RECOGNITION AND ENFORCEMENT 

3.1. The certificates 

The  Regulation  establishes  two  types  of  certificates:  one  that  accompanies  a  judgment  and 
another one used for authentic instruments or court settlements. The former is needed not only 
in order to enforce a judgment, but also when invoking a foreign judgment for the purposes of 
recognition.  

The  Court  has  interpreted  different  aspects  related  to  the  issuance  of  the  certificate.  It 
concluded on several occasions that the issuing court must ascertain whether the Regulation is 
applicable  if  such  an  assessment  was  not  made  by  the  adjudicating  court  (Gradbeništvo 
Korana,  C-579/17,  Weil,  C-361/18).  By  issuing  the  certificate  the  court  of  origin  implicitly 
confirms  that  the  judgment  falls  within  the  scope  of  application  of  the  Regulation 
(Gradbeništvo Korana).  

The  Study  shows  that  ten  Member  States  found  no  particular  issue  with  the  certificate  (AT, 
EE,  EL,  FI,  HU,  IE,  LV,  PT,  SE,  SK).  However,  five  Member  States  (CY,  HR,  IT,  PL,  SL) 
detected  difficulties  regarding  the  requirement  to  serve  the  certificate  on  the  person  against 
whom enforcement is sought before the first enforcement measure.  

In these procedures, it is important for the creditor to be able to enforce the judgment against 
the debtor. For this to happen, a speedy process is essential. The requirement of service of the 
Article  53  certificate18  on the  debtor  prior  to  any  enforcement  measures  can  slow  down  the 
whole  process,  and  even  delay  it  indefinitely  if  the  debtor  takes  steps  to  move  its  assets 
elsewhere. The absence of the service requirement does not mean that the judgment debtor is 
not well protected, as it can always challenge the enforcement.   

As a result, while the issuance of the certificate functions rather well in practice, a number of 
technical issues, such as the need for service prior to the first enforcement measure, remain.  

3.2. Application of refusal grounds based on national law  

The Regulation introduced a novelty in paragraph 2 of Article 41 by allowing the application 
of refusal grounds based on the national law of the Member State of enforcement, as long as 
they  are  not  incompatible  with  those  listed  in Article  45.  Recital  (30)  further  explains  this 
provision by mentioning that such grounds can be invoked in relation to enforcement, but that 
for the refusal of recognition only the grounds listed in the Regulation can be resorted to.  

While this provision has not been widely applied in practice, the reports of the JUDGTRUST 
project  point  out  some  questions  related  to  the  lack  of  clarity  of  this  provision,  raised  in 
particular in some Member States (BE, ET, FR, PL, SL). Indeed, it has been argued that this 
provision  seems  to  be  somewhat  at  odds  with  the  overall  objective  of  the  Regulation  to 
simplify  enforcement  and  also  that  it  seems  to  depart  from  the  rationale  of  the  CJEU’s 
judgment in Prism Investments (C-139/10) which excluded the application of any additional 
refusal ground other than those listed in Articles 34 and 35 of the Brussels I Regulation19.   

18  The  same  requirement  existed  in  the  Brussels  I  Regulation  with  regard  to  the  service  of  the  declaration  of 

enforceability, prior to the abolishment of the need for exequatur.  

19  While the judgment in Prism Investments is relevant in this context, it should be noted that it was given under 
the Brussels I Regulation and the question related to the specific situation of the exequatur procedure and the 
actual procedure for enforcement. 

9 

 
 
 
 
 
PART 2 – THE CASE-LAW OF THE CJEU BY ORDER OF MENTIONING 

1. The Report  

Judgment of 2 June 2022, London Steam-Ship Owners’ Mutual Insurance Association Limited 
v Kingdom of Spain, C-700/20, EU:C:2022:488. 

Judgment  of  21  May  1980,  Bernard  Denilauler  v  SNC  Couchet  Freres,  C-125/79, 
EU:C:1980:130. 

Judgment  of  9  March  2017,  Pula  Parking  d.o.o.  v  Sven  Klaus  Tederahn,  C-551/15, 
EU:C:2017:193. 

Judgment  of  11  April  2013,  Land  Berlin  v  Ellen  Mirjam  Sapir  and  Others,  C-645/11, 
EU:C:2013:228. 

Judgment of 7 March 2018, flightright GmbH v Air Nostrum, Líneas Aéreas del Mediterráneo 
SA,  Roland  Becker  v  Hainan  Airlines  Co.  Ltd  and  Mohamed  Barkan  and  Others  v  Air 
Nostrum,  Líneas  Aéreas  del  Mediterráneo  SA,  Joined  Cases  C-274/16,  C-447/16  and  C-
448/16, EU:C:2018:160. 

Judgment  of 4 October 2018,  Feniks Sp. z o.o. v Azteca Products  &  Services SL, C-337/17, 
EU:C:2018:805. 

Judgment  of  28  November  2024,  VariusSystems  digital  solutions  GmbH,  C-526/23, 
ECLI:EU:C:2024:985. 

Judgment  of  6  October  1976,  Industrie  Tessili  Italiana  Como  v  Dunlop  AG,  C-12/76, 
EU:C:1976:133. 

Judgment  of  3  May  2017,  Color  Drack  GmbH  v  Lexx  International  Vertrieb  GmbH,  C-
386/05, EU:C:2007:262.  

 Judgment of 9 July 2009, Peter Rehder v Air Baltic Corporation, C-204/08, EU:C:2009:439. 

Judgment of 11 March 2010, Wood Floor Solutions Andreas Domberger GmbH v Silva Trade 
SA, C-19/09, EU:C:2010:13. 

Request  for  a  preliminary  ruling  of  18  January  2024  from  Rechtbank  Amsterdam 
(Netherlands), in case Stichting Right to Consumer Justice and Stichting App Stores Claims, 
C-34/24. 

Judgment of 24 November 2020, Wikingerhof GmbH & Co. KG v Booking.com BV, C-59/19, 
EU:C:2020:950. 

Judgment of 28 January 2015, Harald Kolassa v Barclays Bank plc, C-375/13, EU:C:2015:37. 

Judgment  of  16  June  2016,  Universal  Music  International  Holding  BV  v  Michael  Tétreault 
Schilling and Others, C-12/15, EU:C:2016:449. 

Judgment  of  10  June  2004,  Kronhofer  v  Marianne  Maier  and  Others,  C-168/02, 
EU:C:2004:364. 

Judgment  of  12  May  2021,  Vereniging  van  Effectenbezitters  v  BP  plc,  C-709/19, 
EU:C:2021:377. 

Judgment  of  13  March  2014,  Marc  Brogsitter  v  Fabrication  de  Montres  Normandes  EURL 
and Karsten Fräßdorf, C-548/12, EU:C:2014:148. 

Opinion  of  Advocate  General  Sánchez-Bordona  of  17  December  2020,  in  Vereniging  van 
Effectenbezitters v BP plc, C-709/19, EU:C:2020:1056. 

10 

 
 
Judgment  of  7  March  1995,  Fiona  Shevill,  Ixora  Trading  Inc.,  Chequepoint  SARL  and 
Chequepoint International Ltd v Presse Alliance SA, C-68/93, EU:C:1995:61. 

Judgment  of  25  October  2011,  eDate Advertising  GmbH  and  Others  v  X  and  Société  MGN 
LIMITED, C-509/09 and C-161/10, EU:C:2011:685. 

Judgment  of  17  October  2017,  Bolagsupplysningen  OÜ  and  Ingrid  Ilsjan  v  Svensk  Handel 
AB, C-194/16, EU:C:2017:766. 

Judgment of 17 June 2021, Mittelbayerischer Verlag KG v SM, C-800/19, EU:C:2021:489. 

Judgment of 21 December 2021, Gtflix Tv v DR, C-251/20, EU:C:2021:1036. 

Judgment  of  20  May  2010,  Česká  podnikatelská  pojišťovna  as,  Vienna  Insurance  Group  v 
Michal  

Judgment  of 8 May 2022,  Glaxosmithkline and  Laboratoires Glaxosmithkline v  Jean-Pierre 
Rouard, C-462/06, EU:C:2008:299. 

Judgment  of 3 October  2019,  Jana Petruchová  v FIBO Group Holdings Limited, C-208/18, 
EU:C:2019:825. 

Judgment  of 10 December 2020, A.B. and B.B. v Personal Exchange International Limited, 
C-774/19, EU:C:2020:1015.  

Judgment  of  25  January  2018,  Maximilian  Schrems  v.  Facebook  Ireland  Limited,  C-498/16, 
EU:C:2018:37. 

Judgment of 9 March 2023, JA v Wurth Automotive GmbH, C-177/22, EU:C:2023:185. 

Judgment of 20 January 2005, Johann Gruber v Bay Wa AG, C-461/01, EU:C:2005:32. 

Judgment of 7 December 2020, Peter Pammer v Reederei Karl Schlüter GmbH & Co KG and 
Hotel  Alpenhof  GesmbH  v  Oliver  Heller, 
joined  cases  C-585/08  and  C-144/09, 
EU:C:2010:740. 

Judgment  of  6  September  2012,  C-190/11,  Daniela  Mühlleitner  v Ahmad  Yusufi  and  Wadat 
Yusufi, EU:C:2012:542. 

Judgment  of  17  October  2013,  Lokman  Emrek  v  Vlado  Sabranovic,  C-218/12, 
EU:C:2013:666. 

Judgment  of  23  December  2015,  Rüder  Hobohm  v  Benedikt  Kampik  Ltd  &  Co.  KG  and 
Others, C-297/14, EU:C:2015:844. 

Judgment of 30 September 2021, Commerzbank AG v E.O., C-296/20, EU:C:2021:784. 

Judgment of 27 April 2023, Lännen MCE Oy v Berky GmbH and Senwatec GmbH & Co. KG., 
C-104/22, EU:C:2023:343. 

Judgment  of  13  July  2006,  GAT  Gesellschaft  für  Antriebstechnik  mbH  &  Co.  KG  v.  Luk 
Lamellen- und Kupplungsbau Beteiligungs KG, C-4/03, EU:C:2006:457. 

Opinion  of  Advocate  General  Emiliou  of  22  February  2024,  in  BSH  Hausgeräte  GmbH  v 
Electrolux AB, C-339/22, EU:C:2024:159. 

Judgment  of  25  February  2025,  BSH  Hausgeräte  GmbH  v  Electrolux  AB,  C-339/22, 
EU:C:2025:108. 

Judgment of 1 March 2005, Andrew Owusu v N. B. Jackson, trading as ‘Villa Holidays Bal-
Inn Villas’ and Others, C-281/02, EU:C:2005:120. 

Judgment of 8 September 2022, IRnova AB v FLIR Systems AB, C-399/21, EU:C:2022:648. 

11 

 
 
Judgment  of  16  July  2015,  Diageo  Brands  BV  v  Simiramida-04  EOOD,  C-681/13, 
EU:C:2015:137. 

Judgment of 7 April 2022, J v H Limited, C-568/20, EU:C:2021:1026. 

Judgment  of  4  October  2024,  Real  Madrid  Club  de  Fútbol,  AE  v  EE,  Société  Éditrice  du 
Monde SA, C-633/22, EU:C:2024:843. 

Judgment  of  16  January  2019,  Stefano  Liberato  v  Luminita  Luisa  Grigorescu,  C-386/17, 
EU:C:2019:24. 

Judgment of 4 May 2010, TNT Express Nederland, C-533/08, EU:C:2010:243. 

Judgment of 24 March 2024, Gjensidige, C-90/22, EU:C:2023:994. 

Judgment  of  1  October  2022,  Verein  für  Konsumenteninformation  v  Karl  Heinz  Henkel,  C-
167/00, EU:C:2002:555. 

Judgment  of  21  May  2015,  Cartel  Damage  Claims  (CDC)  Hydrogen  Peroxide  SA  v  Evonik 
Degussa GmbH and Others, C-352/13, EU:C:2015:335. 

Judgment  of  9  July  2020,  Verein  für  Konsumenteninformation  v  Volkswagen AG,  C-343/19, 
EU:C:2020:534. 

Opinion  of  Advocate  General  Sánchez-Bordona  of  27  March  2025,  in  Stichting  Right  to 
Consumer Justice and Stichting App Stores Claims, C-34/24, EU:C:2025:212. 

Judgment  of  24  November  2022,  Tilman  SA  v  Unilever  Supply  Chain  Company  AG,  C-
581/21, EU:C:2022:923. 

2. Part I of this Staff Working Document 

Judgment  of  17  November  2011,  Hypoteční  banka  a.s.  v  Udo  Mike  Lindner,  C-327/10, 
EU:C:2011:745. 

Judgment  of  14  November  2013,  Armin  Maletic  and  Marianne  Maletic  v  lastminute.com 
Gmbh and TUI Österreich GmbH, C-478/12, EU:C:2013:735. 

Judgment of 7 May 2020, PARKING d.o.o. and Interplastics s.r.o. v SAWAL d.o.o. and Letifico 
d.o.o., Joined Cases C-267/19 and C-323/19, EU:C:2020:351. 

Judgment of 3 June 2021, ZN v Generalno konsulstvo na Republika Bulgaria v grad Valensia, 
Kralstvo Ispania, C-280/20, EU:C:2021:443. 

Judgment of 8 September 2022, IRnova AB v FLIR systems AB, C-399/21, EU:C:2022:648.  

Judgment of 8 February 2024, Inkreal s.r.o. v Dúha reality s.r.o., C-566/22, EU:C:2024:123. 

Judgment of 29 July 2024, JX v FTI Touristik GmbH, C-774/22, EU:C:2024:646. 

Judgment  of  14  October  1976,  LTU  Lufttransportunternehmen  GmbH  &  Co.  KG  v 
Eurocontrol, C-29/76, EU:C:1976:137. 

Order  of  the  Court  of  21  September  2021,  Nemzeti  Útdíjfizetési  Szolgáltató  Zrt.  v  NW,  C-
30/21, EU:C:2021:753. 

Judgment of 22 February 1979, Henri Gourdain v Franz Nadler, 133/78, EU:C:1979:49. 

Judgment  of  4  September  2014,  Nickel  &  Goeldner  Spedition  GmbH  v  ‘Kintra’  UAB, 
C-157/13, EU:C:2014:2145. 

Request  for  a  preliminary  ruling  of  28  June  2023  from  Hoge  Raad  der  Nederlanden 
(Netherlands), in case Athenian Brewery and Heineken, C-393/23. 

12 

 
 
Request  for  a  preliminary  ruling  of  13  November  2023  from  Gerechtshof  Amsterdam 
(Netherlands), in case Smurfit Kappa Europe and Others, C- 673/23. 

Judgment  of  13  February  2025,  Athenian  Brewery  and  Heineken,  C-393/23, 
ECLI:EU:C:2025:85. 

Request  for  a  preliminary  ruling  of  13  November  2023  from  Gerechtshof  Amsterdam 
(Netherlands),  in  case  Electricity  &  Water  Authority  of  the  Government  of  Bahrain  and 
Others, C- 672/23. 

Judgment of 13 July 2006, Roche Nederland BV and Others v Frederick Primus and Milton 
Goldenberg, C-539/03, EU:C:2006:458. 

Judgment of 20 September 2012, Eva-Maria Painer v Standard VerlagsGmbH and Others, C-
145/10, EU:C:2013:138. 

Judgment  of  9  December  2021,  BT  v.  Seguros  Catalana  Occidente,  C-708/20, 
EU:C:2021:986. 

Judgment of 27 February 2020, AAS ‘Balta’ v UAB ‘Grifs AG’, C-803/18, EU:C:2020:123. 

Judgment  of  20  July  2017,  Landeskrankenanstalten-Betriebsgesellschaft  —  KABEG  v 
Mutuelles du Mans assurances — MMA IARD SA, C-340/16, EU:C:2017:576. 

Judgment of 21 October 2021, T. B., D. sp. z o.o. v G. I. A/S, C-393/20, EU:C:2021:871. 

Judgment  of  20  May  2021,  CNP  spółka  z  ograniczoną  odpowiedzialnością  v  Gefion 
Insurance A/S, C-913/19, EU:C:2021:399. 

Judgment  of  10  September  2015,  Holterman  Ferho  Exploitatie  BV  and  Others  v  Friedrich 
Leophold Freiherr Spies von Büllesheim, C-47/14, EU:C:2015:574. 

Judgment  of 11 April 2019,  Peter Bosworth  and Colin Hurley v Arcadia  Petroleum Limited 
and Others, C-603/17, EU:C:2019:310. 

Request  for  a  preliminary  ruling  from  the  Curtea  de  Apel  Cluj  (Romania)  lodged  on 
15 November 2023 – E. B.SP. Z. O. O. v K. P.SP. Z. O. O, C-682/23. 

Judgment  of  25  April  2024,  Maersk, 
ECLI:EU:C:2024:349. 

Joined  Cases  C-345/22 

to  C-347/22, 

Judgment  of  27  February  2025,  Societa  Italiana  Lastre  SpA  v  Agora,  C-537/23, 
ECLI:EU:C:2025:120. 

Judgment  of  21  May  2015,  Jaouad  El  Majdoub  v  CarsOnTheWeb.Deutschland  GmbH,  C-
322/14, ECLI:EU:C:2015:334. 

Judgment  of  28  February  2019,  BUAK  Bauarbeiter-Urlaubs-  u.  Abfertigungskasse  v 
Gradbeništvo Korana d.o.o., C-579/17, EU:C:2018:863. 

Judgment of 6 June 2019, Ágnes Weil v Géza Gulácsi, C-361/18. EU:C:2019:473. 

Judgment of 13 October 2011, Prism Investments BV v Jaap Anne van der Meer, C-139/10, 
EU:C:2011:401. 

13