Georgios Leventis and Nikolaos Vafeias v Malcon Navigation Co. Ltd and Brave Bulk Transport Ltd.
Date: 2017-06-28
31


A preliminary point to note is that, in so far as the Brussels I Regulation replaces, in the relations between Member States, the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1978 L 304, p. 36), as amended by the successive accession conventions for the new Member States, the interpretation provided by the Court in respect of the provisions of that convention is also valid for those of the regulation whenever the provisions of those instruments may be regarded as equivalent, which is the case as regards Article 23 of the Brussels I Regulation, which succeeded the first paragraph of Article 17 of the convention (see, to that effect, judgment of 7 July 2016, Hőszig, C‑222/15, EU:C:2016:525, paragraphs 30 and 31 and the case-law cited).
32


Given that, in the general scheme of the Brussels I Regulation, the general principle laid down in Article 2(1) thereof is that the courts of the Member State in which the defendant is domiciled are to have jurisdiction, the rules on jurisdiction derogating from the general principle, such as those set out in Article 23 of the regulation, cannot result in an interpretation which goes beyond the situations expressly envisaged by that regulation (see, to that effect, judgment of 17 September 2009, Vorarlberger Gebietskrankenkasse, C‑347/08, EU:C:2009:561, paragraphs 37 and 39 and the case-law cited).
33


Article 23 of the Brussels I Regulation clearly indicates that its scope is limited to cases in which the parties have ‘agreed’ on a court. As is apparent from recital 11 of the Brussels I Regulation, it is that consensus between the parties which justifies the primacy granted, in the name of the principle of the freedom of choice, to the choice of a court other than that which may have had jurisdiction under that regulation (judgments of 21 May 2015, El Majdoub, C‑322/14, EU:C:2015:334, paragraph 26 and the case-law cited, and of 20 April 2016, Profit Investment SIM, C‑366/13, EU:C:2016:282, paragraph 24 and case-law cited).
34


The Court has thus stated that the court before which the matter is brought has the duty of examining, in limine litis, whether the jurisdiction clause was in fact the subject of consensus between the parties, which must be clearly and precisely demonstrated, the purpose of the requirements as to form imposed by Article 23(1) of the Brussels I Regulation being, in that regard, to ensure that consensus between the parties is in fact established (judgment of 7 July 2016Hőszig, C‑222/15, EU:C:2016:525, paragraph 37 and the case-law cited).
35


Thus, a jurisdiction clause in a contract may, in principle, produce effects only in the relations between the parties who have given their agreement to the conclusion of that contract (judgment of 21 May 2015, CDC Hydrogen Peroxide, C‑352/13, EU:C:2015:335, paragraph 64 and the case-law cited).
39


With regard to Article 6 of the Brussels I Regulation, which deals with jurisdiction in instances where there is more than one defendant, it should be noted that the requirements laid down by Article 23 of the Brussels I Regulation must be strictly interpreted since they exclude both jurisdiction as determined by the general principle of the courts of the Member State in which the defendant is domiciled laid down in Article 2 thereof, and the special jurisdiction provided for in Articles 5 to 7 of that regulation (judgment of 21 May 2015, El Majdoub, C‑322/14, EU:C:2015:334, paragraph 25 and the case-law cited).
40


In particular, by entering into an agreement conferring jurisdiction in accordance with Article 23(1) of the Brussels I Regulation, the parties may derogate not only from the general jurisdiction under Article 2 thereof but also from the special jurisdiction laid down in Articles 5 and 6. Thus, the court seised of a matter can, in principle, be bound by a jurisdiction clause derogating from the rules of jurisdiction laid down in Articles 5 and 6 which was concluded by the parties under Article 23(1) (see, to that effect, judgment of 21 May 2015, CDC Hydrogen Peroxide, C‑352/13, EU:C:2015:335, paragraphs 59 and 61).