Société financière et industrielle du Peloux v Axa Belgium and Others.
Date: 2005-05-12
28. As a preliminary point, it should be borne in mind that the Brussels Convention must be interpreted having regard both to its scheme and objectives and to its relationship with the Treaty (Case 12/76 Tessili [1976] ECR 1473, paragraph 9).
29. In that connection, in Title II, Section 3, the Brussels Convention establishes an autonomous system for the conferral of jurisdiction in matters of insurance. Articles 8 to 10 of the Convention provide in particular that an insurer domiciled in a Contracting State may be sued in the courts of the Contracting State where he is domiciled, in the courts of the policy-holder’s domicile, in the courts of the place where the harmful event occurred in the case of liability insurance or in the court in which the injured party has brought proceedings against the insured, if the law of that court so allows. In addition, Article 11 of the Convention provides that an insurer may bring proceedings only in the courts of the Contracting State in which the defendant is domiciled, irrespective of whether he is the policy‑holder, the insured or a beneficiary.
30. According to settled case-law, it is apparent from a consideration of the provisions of that section, in the light of the documents leading to their enactment that, in affording the insured a wider range of jurisdiction than that available to the insurer and in excluding any possibility of a clause conferring jurisdiction for the benefit of the insurer, they reflect an underlying concern to protect the insured, who in most cases is faced with a predetermined contract the clauses of which are no longer negotiable and is the weaker party economically (Case 201/82 Gerling and Others [1983] ECR 2503, paragraph 17, and Case C-412/98 Group Josi  [2001] ECR I-5925, paragraph 64).
31. In insurance contracts, the aim of protecting the economically weaker party is also ensured by the rules concerning the autonomy of the parties in relation to jurisdiction clauses. Thus, Article 12 of the Brussels Convention lists exhaustively the cases in which the parties may derogate from the rules laid down in its Title II, Section 3. Moreover, under the fourth paragraph of Article 17 of the Convention, jurisdiction clauses have no legal force if they are contrary to Article 12. It follows from those provisions that the Convention establishes a system in which derogations from the jurisdictional rules in matters of insurance must be interpreted strictly.
33. Thus, the principle of party autonomy enables the policy-holder, the weakest party to the contract, to waive either of the two forms of protection afforded by the Brussels Convention. However, by virtue of the overriding aim of protecting the economically weakest party, that autonomy does not extend so far as to allow such a policy-holder to waive entitlement to the jurisdiction of the courts of his domicile. As the weakest party, he must not be discouraged from suing by being compelled to bring his action before the courts in the State in which the other party to the contract is domiciled (see, by analogy, in the case of consumers, Case C-464/01 Gruber [2005] ECR I-0000, paragraph 34).
38. Consequently, a jurisdiction clause based on Article 12(3) of the Convention cannot in any event be accepted as enforceable against a beneficiary unless it does not undermine the aim of protecting the economically weakest party.