CELEX: 62009CJ0111
Language: en
Date: 2010-05-20 00:00:00
Title: Judgment of the Court (Fourth Chamber) of 20 May 2010.#Česká podnikatelská pojišťovna as, Vienna Insurance Group v Michal Bilas.#Reference for a preliminary ruling: Okresní soud v Chebu - Czech Republic.#Regulation (EC) No 44/2001- Action brought by an insurer before the court of its place of domicile seeking the payment of an insurance premium by the policyholder, domiciled in a different Member State - Appearance of the defendant entered before the court seised - Jurisdiction not contested and defence as to substance - Entering an appearance conferring jurisdiction.#Case C-111/09.

Case C-111/09
      Česká podnikatelská pojišťovna as, Vienna Insurance Group
      v
      Michal Bilas
      (Reference for a preliminary ruling from the Okresní soud v Chebu (Czech Republic))
      (Regulation (EC) No 44/2001 – Action brought by an insurer before the court of its place of domicile seeking the payment of an insurance premium by the
         policyholder, domiciled in a different Member State – Appearance of the defendant entered before the court seised – Jurisdiction not contested and defence as to substance – Entering an appearance conferring jurisdiction)
      
      Summary of the Judgment
      1.        Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation
            No 44/2001 – Prorogation of jurisdiction – Appearance of the defendant entered without the jurisdiction of the court seised
            being contested
      (Council Regulation No 44/2001, Art. 24)
      2.        Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation
            No 44/2001 – Recognition and enforcement of judgments – Grounds for refusal – Conflict with the rules on special jurisdiction
            under Article 35 – Scope
      (Council Regulation No 44/2001, Arts 24 and 35)
      1.        Article 24 of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial
         matters must be interpreted as meaning that the court seised, where the provisions in Section 3 of Chapter II of that regulation
         on rules of special jurisdiction in matters relating to insurance were not complied with, must declare itself to have jurisdiction
         where the defendant enters an appearance and does not contest that court’s jurisdiction, since entering an appearance in that
         way amounts to a tacit prorogation of jurisdiction.
      
      The second sentence of Article 24 of Regulation No 44/2001 delimits the scope of the general rule and, consequently, since
         it sets out the exceptions to the general rule on the tacit prorogation of jurisdiction, must be interpreted restrictively.
         It follows that that second sentence cannot be understood as enabling the application of the general rule set out in the first
         sentence of that article to be excluded in respect of disputes other than those to which it expressly refers, namely those
         which are subject to the rules on exclusive jurisdiction.
      
      (see paras 22-24, 26, 33, operative part)
      2.        The provisions of Article 35 of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in
         civil and commercial matters, which provide that a basis for non-recognition is conflict with the rules on special jurisdiction,
         concern non-recognition of judgments given by a court without jurisdiction which has not been seised in accordance with those
         rules. They are therefore not applicable where the judgment is given by a court with jurisdiction. That is true, inter alia,
         of a court seised, even though those rules on special jurisdiction are not complied with, before which the defendant enters
         an appearance and does not contest that court’s jurisdiction. Such a court in fact has jurisdiction on the basis of Article
         24 of Regulation No 44/2001. Therefore, Article 35 of that regulation does not prevent the recognition of the judgment given
         by that court.
      
      (see paras 28-29)
JUDGMENT OF THE COURT (Fourth Chamber)
      20 May 2010 (*)
      
      (Regulation (EC) No 44/2001 – Action brought by an insurer before the court of its place of domicile seeking the payment of an insurance premium by the
         policyholder, domiciled in a different Member State – Appearance of the defendant entered before the court seised – Jurisdiction not contested and defence as to substance – Entering an appearance conferring jurisdiction)
      
      In Case C‑111/09,
      REFERENCE for a preliminary ruling under Articles 68 EC and 234 EC from the Okresní soud v Chebu (Czech Republic), made by
         decision of 3 February 2009 and received at the Court on 23 March 2009, in the proceedings
      
      Česká podnikatelská pojišťovna as, Vienna Insurance Group
      v
      Michal Bilas,
      THE COURT (Fourth Chamber),
      composed of J.‑C. Bonichot, President of the Chamber, C. Toader (Rapporteur), K. Schiemann, P. Kūris and L. Bay Larsen, Judges,
      Advocate General: J. Mazák,
      Registrar: R. Grass,
      having regard to the written procedure,
      after considering the observations submitted on behalf of:
      –        the Czech Government, by M. Smolek, acting as Agent,
      –        the German Government, by M. Lumma, acting as Agent,
      –        the Slovak Government, by B. Ricziová, acting as Agent,
      –        the Commission of the European Communities, by A.‑M. Rouchaud-Joët and M. Šimerdová, acting as Agents,
      having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
      gives the following
      Judgment
      1        This reference for a preliminary ruling concerns the interpretation of Articles 24 and 26 of Council Regulation (EC) No 44/2001
         of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001
         L 12, p. 1).
      
      2        The reference was submitted in the course of proceedings between Česká podnikatelská pojišťovna as, Vienna Insurance Group
         (‘ČPP’), an insurance company established in the Czech Republic, and Mr Bilas, a policyholder domiciled in Slovakia, regarding
         the payment of an insurance premium.
      
       Legal context
      3        The rules of jurisdiction in matters relating to insurance are laid down in Chapter II, Section 3, of Regulation No 44/2001,
         which comprises Articles 8 to 14 of that regulation.
      
      4        Article 8 of that regulation provides:
      
      ‘In matters relating to insurance, jurisdiction shall be determined by this Section, without prejudice to Article 4 and point
         5 of Article 5.’
      
      5        Article 12(1) of that regulation provides:
      
      ‘Without prejudice to Article 11(3), an insurer may bring proceedings only in the courts of the Member State in which the
         defendant is domiciled, irrespective of whether he is the policyholder, the insured or a beneficiary.’
      
      6        Article 13 of that regulation provides:
      
      ‘The provisions of this Section may be departed from only by an agreement:
      (1)      which is entered into after the dispute has arisen, or
      …’
      7        Article 22 of Section 6 of Chapter II of Regulation No 44/2001 sets out rules on ‘Exclusive jurisdiction’.
      
      8        Article 24 of that regulation, contained in Section 7, entitled ‘Prorogation of jurisdiction’, of Chapter II, provides: 
      
      ‘Apart from jurisdiction derived from other provisions of this Regulation, a court of a Member State before which a defendant
         enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction,
         or where another court has exclusive jurisdiction by virtue of Article 22.’
      
      9        Section 8, entitled ‘Examination as to jurisdiction and admissibility’, of Chapter II of Regulation No 44/2001 includes Articles
         25 and 26. 
      
      10      Article 25 of that regulation provides:
      
      ‘Where a court of a Member State is seised of a claim which is principally concerned with a matter over which the courts of
         another Member State have exclusive jurisdiction by virtue of Article 22, it shall declare of its own motion that it has no
         jurisdiction.’
      
      11      Article 26(1) of that regulation states:
      
      ‘Where a defendant domiciled in one Member State is sued in a court of another Member State and does not enter an appearance,
         the court shall declare of its own motion that it has no jurisdiction unless its jurisdiction is derived from the provisions
         of this Regulation.’
      
      12      Article 35 of Regulation No 44/2001, included in Chapter III, entitled ‘Recognition and Enforcement’, under Section I, itself
         entitled ‘Recognition’, reads as follows:
      
      ‘1.       Moreover, a judgment shall not be recognised if it conflicts with Sections 3, 4 or 6 of Chapter II, or in a case provided
         for in Article 72.
      
      ...
      3.       Subject to the [provisions of] paragraph 1, the jurisdiction of the court of the Member State of origin may not be reviewed.
         The test of public policy referred to in point 1 of Article 34 may not be applied to the rules relating to jurisdiction.’
      
       The dispute in the main proceedings and the questions referred for a preliminary ruling
      13      On 14 April 2008, ČPP brought an action against Mr Bilas before the referring court seeking an order for the payment by the
         latter of the sum of CZK 1 755, plus default interest, as the premium due under an insurance policy concluded between those
         parties on 30 May 2002.
      
      14      Having been called on by the Okresní soud v Chebu (Cheb District Court) to submit his observations, Mr Bilas challenged ČPP’s
         claim as to its substance without contesting the jurisdiction of the court seised.
      
      15      In its order for reference, the Okresní soud v Chebu observes that it follows from Regulation No 44/2001 that, where its jurisdiction
         has not been contested, that court cannot conduct an examination as to its own jurisdiction since the dispute does not fall
         within the situations provided for in Articles 25 and 26 of that regulation.
      
      16      It also observes that, if it rules on the substance without examining its jurisdiction, its judgment cannot be recognised
         for the purpose of Article 35 of Regulation No 44/2001. That provision does not allow the recognition in a Member State of
         a judgment which has not been given by a court with jurisdiction for the purposes of the provisions of Sections 3, 4 and 6
         of Chapter II of that regulation. According to the Okresní soud v Chebu, in so far as it was seised in breach of Article 12(1)
         of that regulation, it will not be possible for its judgment to be recognised in another Member State.
      
      17      The referring court is accordingly uncertain as to whether that conclusion is correct. It observes that either it should have
         the possibility to examine its jurisdiction irrespective of Article 26 of Regulation No 44/2001, or it should be able to apply
         Article 24 of that regulation to its jurisdiction, even though Article 8 of that regulation does not expressly provide for
         the possibility to apply that provision.
      
      18      Having regard to those considerations, the Okresní soud v Chebu decided to stay the proceedings and to refer the following
         questions to the Court for a preliminary ruling:
      
      ‘(1)      Should Article 26 of … Regulation … No 44/2001 … be interpreted as not authorising a court to review its international jurisdiction
         where the defendant participates in the proceedings, even when the case is subject to the rules on compulsory jurisdiction
         under Section 3 [of Chapter II ] of the Regulation and the application is brought contrary to those rules?
      
      (2)      Can the defendant, by the fact that he participates in the proceedings, establish the international jurisdiction of the court
         within the meaning of Article 24 of … Regulation [No 44/2001] even where the proceedings are otherwise subject to the rules
         of compulsory jurisdiction in Section 3 [of Chapter II] of the Regulation and the application is brought contrary to those
         rules?
      
      (3)      If the answer to question (2) is in the negative, may the fact that the defendant participates in the proceedings before a
         court which otherwise under the Regulation does not have jurisdiction in a case concerning insurance be regarded as an agreement
         on jurisdiction within the meaning of Article 13(1) of the Regulation?’
      
       On the questions referred 
       The second question
      19      By its second question, the referring court essentially inquires whether Article 24 of Regulation No 44/2001 must be interpreted
         as meaning that the court seised, where the rules in Section 3 of Chapter II of that regulation are not complied with, has
         jurisdiction where the defendant enters an appearance and does not contest the court’s jurisdiction.
      
      20      That question concerns whether, even for disputes to which the rules of special jurisdiction provided for by Regulation No
         44/2001 apply, such as those contained in Section 3 of Chapter II of that regulation in matters relating to insurance, the
         entering of an appearance by the defendant, who does not contest the jurisdiction of the court seised, amounts to a tacit
         prorogation of jurisdiction.
      
      21      In this connection, it must be observed that the first sentence of Article 24 of Regulation No 44/2001 provides for a rule
         of jurisdiction based on the entering of an appearance by the defendant in respect of all disputes where the jurisdiction
         of the court seised is not derived from other provisions of that regulation. That provision applies also in cases where the
         court has been seised in breach of the provisions of that regulation and implies that the entering of an appearance by the
         defendant may be considered to be a tacit acceptance of the jurisdiction of the court seised and thus a prorogation of that
         court’s jurisdiction.
      
      22      The second sentence of Article 24 of Regulation No 44/2001 provides for exceptions to that general rule. It determines that
         there is no tacit prorogation of jurisdiction of the court seised where the defendant contests the jurisdiction, thereby expressing
         his intention not to accept that court’s jurisdiction, or where the dispute is one in respect of which Article 22 of that
         regulation provides for rules on exclusive jurisdiction.
      
      23      That second sentence contains a rule which delimits the scope of the general rule. Consequently, as has been observed by the
         Czech, German and Slovak Governments, and by the Commission of the European Communities, it must be regarded as an exception
         and must be interpreted restrictively.
      
      24      It follows that the second sentence of Article 24 of Regulation No 44/2001 cannot be understood as enabling the application
         of the general rule set out in the first sentence of that article to be excluded in respect of disputes other than those to
         which it expressly refers.
      
      25      According to the case-law relating to Article 18 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement
         of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 36), a provision essentially identical to Article 24 of Regulation
         No 44/2001, in the situations which are not expressly included in the exceptions provided for in the second sentence of Article
         18, the general rule on the tacit prorogation of jurisdiction applies. Ruling in proceedings where the parties had concluded
         an agreement on jurisdiction, the Court stated that neither the general scheme nor the objectives of that convention provide
         grounds for the view that the parties are prevented from submitting their dispute to a court other than that stipulated in
         the agreement (see Case 150/80 Elefanten Schuh [1981] ECR 1671, paragraph 10, and Case 48/84 Spitzley [1985] ECR 787, paragraphs 24 and 25).
      
      26      Accordingly, since the rules on jurisdiction set out in Section 3 of Chapter II of Regulation No 44/2001 are not rules on
         exclusive jurisdiction, the court seised, where those rules are not complied with, must declare itself to have jurisdiction
         where the defendant enters an appearance and does not contest that court’s jurisdiction.
      
      27      In its order for reference, the Okresní soud v Chebu inquires whether, by declaring itself to have jurisdiction on the basis
         of Article 24 of Regulation No 44/2001, where, however, the rules of Section 3 of Chapter II of that regulation were not complied
         with, its judgment might not be recognised, in accordance with Article 35(1) of that regulation.
      
      28      In this connection, Article 35 provides that a basis for non-recognition is conflict with the rules on special jurisdiction,
         in particular those on matters relating to insurance, whose aim is to ensure stronger protection of the weaker party.
      
      29      That provision concerns non-recognition of judgments given by a court without jurisdiction which has not been seised in accordance
         with those rules. It is therefore not applicable where the judgment is given by a court with jurisdiction. That is true, inter
         alia, of a court seised, even though those rules on special jurisdiction are not complied with, before which the defendant
         enters an appearance and does not contest that court’s jurisdiction. Such a court in fact has jurisdiction on the basis of
         Article 24 of Regulation No 44/2001. Therefore, Article 35 of that regulation does not prevent the recognition of the judgment
         given by that court.
      
      30      Accordingly, although in the fields concerned by Sections 3 to 5 of Chapter II of that regulation the aim of the rules on
         jurisdiction is to offer the weaker party stronger protection (see, in that regard, Case C‑463/06 FBTO Schadeverzekeringen [2007] ECR I-11321, paragraph 28), the jurisdiction determined by those sections cannot be imposed on that party. If that
         party deliberately decides to enter an appearance, Regulation No 44/2001 leaves him the option to defend himself as to substance
         before a court other than those determined on the basis of those sections.
      
      31      The Czech and Slovak Governments pointed out in their observations that, in order to treat the entering of an appearance by
         the defendant as amounting to the prorogation of jurisdiction in a dispute such as that in the main proceedings, the defendant,
         the weaker party, should be put in a position to be fully aware of the effects of his defence as to substance. The court seised
         should therefore ascertain of its own motion, in the interest of the protection of the weaker party, whether that party’s
         manifestation of intention is in fact deliberate and designed to give that court jurisdiction.
      
      32      Such an obligation could not be imposed other than by the introduction into Regulation No 44/2001 of an express rule to that
         effect. However, it is always open to the court seised to ensure, having regard to the objective of the rules on jurisdiction
         resulting from Sections 3 to 5 of Chapter II of that regulation, which is to offer stronger protection of the party considered
         to be the weaker party, that the defendant being sued before it in those circumstances is fully aware of the consequences
         of his agreement to enter an appearance.
      
      33      It is apparent from the foregoing that the answer to the second question is that Article 24 of Regulation No 44/2001 must
         be interpreted as meaning that the court seised, where the rules in Section 3 of Chapter II of that regulation were not complied
         with, must declare itself to have jurisdiction where the defendant enters an appearance and does not contest that court’s
         jurisdiction, since entering an appearance in that way amounts to a tacit prorogation of jurisdiction.
      
       On the first and third questions
      34      In the light of the affirmative answer given to the second question, there is no need for the Court to consider the third
         question, since it was put by the referring court only in case the second question should be answered in the negative.
      
      35      As regards the first question, concerning the interpretation of Article 26(1) of Regulation No 44/2001, it is sufficient to
         state that, since it follows from the answer given by the Court to the second question that the referring court must, in the
         present case, declare that it has jurisdiction under that regulation, an examination of the provision, which, in accordance
         with its actual wording, may be applied only where the court’s jurisdiction is not derived from the provisions of the regulation,
         would be irrelevant.
      
       Costs
      36      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
         the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
         of those parties, are not recoverable.
      
      On those grounds, the Court (Fourth Chamber) hereby rules:
      Article 24 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of
            judgments in civil and commercial matters must be interpreted as meaning that the court seised, where the rules in Section
            3 of Chapter II of that regulation were not complied with, must declare itself to have jurisdiction where the defendant enters
            an appearance and does not contest that court’s jurisdiction, since entering an appearance in that way amounts to a tacit
            prorogation of jurisdiction.
      [Signatures]
      * Language of the case: Czech.