1 This request for a preliminary ruling concerns the interpretation of Article 25(1) 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 (OJ 2012 L 351, p. 1).
2 The request has been made in proceedings between A and B, two natural persons, concerning the jurisdiction of the Estonian courts to hear and determine a claim for payment of a debt.
3 Recitals 4, 6, 15, 16, 19, 20 and 22 of Regulation No 1215/2012 are worded as follows:
4 Article 15 of that regulation provides: ‘The provisions of this Section may be departed from only by an agreement: … …’
5 Article 19 of Regulation No 1215/2012 provides: ‘The provisions of this Section may be departed from only by an agreement: … …’
6 Article 23 of that regulation is worded as follows: ‘The provisions of this Section may be departed from only by an agreement: …
7 Article 25 of Regulation No 1215/2012 provides, in paragraphs 1 and 4 thereof: ‘1. 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. The agreement conferring jurisdiction shall be either:
8 Paragraph 104 of the tsiviilkohtumenetluse seadustik (Code of Civil Procedure) of 20 April 2005 ([Riigi Teataja (RT)] I 2005, 26, 197; 22/03/2024, 8) (‘the TsMS’) is worded as follows: ‘(1) A court may also exercise its jurisdiction if provision has been made for this under an agreement between the parties and if the dispute is connected with the professional and commercial activity of both parties, or if the contract is connected with the economic and professional activities of one party and the other party is the State, a local government body or another legal person governed by public law, or if both parties are legal persons governed by public law. … (3) Notwithstanding the provisions of subparagraph 1 of this Paragraph, an agreement conferring jurisdiction shall also be valid if:
9 Paragraph 106(1)(1) of the TsMS provides: ‘An agreement conferring jurisdiction shall be null and void if … it is contrary to the provisions of Paragraph 104(1) of this Code …’
10 A and B began cohabiting in Portugal in 2020 and acquired joint ownership of a flat there on 3 May 2022.
11 On 27 August 2022, they concluded a contract under which A transferred his half share of the flat to B. In return for the acquisition of the half share, B acknowledged a liability vis-à-vis A, the amount of which reflected, inter alia, the fact that A had contributed EUR 150 000 to the acquisition and renovation of the flat and that B had been enriched by that amount when acquiring sole ownership of the flat.
12 In that respect, the parties agreed that Estonian substantive law should apply to the contract and that all disputes relating to that contract should be settled amicably and in good faith, it being understood that, should the parties fail to reach an agreement, all disputes directly or indirectly relating to the contract would be resolved by the Harju Maakohus (Harju District Court, Estonia).
13 On the basis of that jurisdiction clause, A brought an action for payment of a debt against B before the Harju Maakohus (Harju District Court) on 23 October 2023.
14 By order of 15 November 2023, the Harju Maakohus (Harju District Court) declined to give a ruling on the action, on the ground that it lacked territorial jurisdiction. That court relied on the first sentence of paragraph 1 of Article 25 of Regulation No 1215/2012 in order to assess whether the agreement conferring jurisdiction was null and void as to its substantive validity under the law of the Member State whose court had been designated, that is to say, under Estonian law. Given that Paragraph 106(1) of the TsMS, read in conjunction with Paragraph 104(1) thereof, permits agreements conferring jurisdiction only in respect of disputes connected with the economic or professional activity of both parties to the agreement in question, which was not the situation in the case before it, the Harju Maakohus (Harju District Court) considered that the agreement conferring jurisdiction was null and void.
15 A brought an appeal against that order before the Tallinna Ringkonnakohus (Court of Appeal, Tallinn, Estonia). Before that court, A argued that the reference in Article 25(1) of Regulation No 1215/2012 to a ground for invalidity of the agreement conferring jurisdiction ‘as to its substantive validity’ under the law of the Member State concerned is a reference to national substantive law and not to procedural law; however, Paragraphs 104 and 106 of the TsMS fall under the latter.
16 By order of 6 December 2023, the Tallinna Ringkonnakohus (Court of Appeal, Tallinn) dismissed the appeal and upheld the order of the Harju Maakohus (Harju District Court). It held that, in order to decide whether the jurisdiction clause is valid in substantive terms under Estonian law, it is necessary to apply not only the provisions of Estonian substantive law but also Paragraph 104(1) and Paragraph 106(1) of the TsMS, which refer to the type of dispute in question, which is a matter of substance, not form.
17 A has brought an appeal against that order before the Riigikohus (Supreme Court, Estonia), which is the referring court. A submits that the jurisdiction clause at issue in the main proceedings is valid, given that Paragraph 104(1) of the TsMS cannot be applied concurrently with Regulation No 1215/2012, as Article 25 of the latter refers only to national substantive law. B contends that that clause is null and void in accordance with Paragraph 104(1) and Paragraph 106(1) of the TsMS.
18 According to the referring court, as is apparent from recital 20 thereof, Article 25(1) of Regulation No 1215/2012 refers to the law of the Member State as a whole, including the conflict-of-law rules. Under Estonian conflict-of-law rules, parties cannot exclude the application of those conflict-of-law rules which are applicable to agreements conferring jurisdiction.
19 The referring court considers that, in order to be able to give a ruling on the dispute in the main proceedings, it is necessary to answer the question whether the fact that Estonian law makes the validity of an agreement conferring jurisdiction conditional on the natural persons who are parties to that agreement having acted in the course of an economic or professional activity, as required by Paragraph 104(1) and Paragraph 106(1) of the TsMS, constitutes a matter relating to the substantive validity of that agreement, within the meaning of Article 25(1) of Regulation No 1215/2012. According to that court, it is not clear either from the wording of that provision of EU law or the case-law of the Court whether the concept of ‘null and void as to its substantive validity’ also covers the conditions laid down by those national rules.
20 In those circumstances, the Riigikohus (Supreme Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Is the fact that the validity of an agreement conferring jurisdiction is subject to the condition that the natural persons who have concluded it are acting in the course of economic and professional activity, as provided for in Paragraph 106(1)(1) of the [TsMS], which provides that an agreement conferring jurisdiction concluded between natural persons is to be null and void if it infringes Paragraph 104(1) [thereof], under which a dispute between natural persons which is to be heard by a court pursuant to an agreement conferring jurisdiction must be connected with the economic or professional activity of both parties, a matter relating to the substantive validity of an agreement conferring jurisdiction within the meaning of the first sentence in fine of Article 25(1) (“unless the agreement is null and void as to its substantive validity under the law of that Member State”) of Regulation [No 1215/2012]?’
21 By its question, the referring court asks, in essence, whether Article 25(1) of Regulation No 1215/2012 is to be interpreted as meaning that a condition, imposed by the national law of the Member State whose court has been designated by the parties to an agreement as having jurisdiction, according to which an agreement conferring jurisdiction entered into by natural persons is valid only if the dispute at issue is connected with the economic or professional activity of those parties, amounts to a ground for the agreement being ‘null and void as to its substantive validity’, within the meaning of that provision.
22 As a preliminary point, it must be observed that, in so far as Regulation No 1215/2012 repealed and replaced 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), which itself replaced 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 successive conventions on the accession of new Member States to that convention (‘the Brussels Convention’), the Court’s interpretation of the provisions of the two latter legal instruments also applies to the interpretation of Regulation No 1215/2012 whenever those provisions may be regarded as ‘equivalent’ to those of that regulation (judgment of 16 May 2024, Toplofikatsia Sofia (Concept of the defendant’s domicile), C‑222/23, EU:C:2024:405, paragraph 49 and the case-law cited). Consequently, the Court’s interpretation of the first paragraph of Article 17 of the Brussels Convention and Article 23(1) of Regulation No 44/2001 also applies to Article 25(1) of Regulation No 1215/2012, in so far as the last of those provisions has reproduced, in similar, or even identical, terms, the content of those earlier provisions.
23 According to settled case-law, for the purpose of interpreting a provision of EU law, account must be taken not only of the wording of the provision in question, but also of the context in which it occurs, as well as the objectives and purpose pursued by the act of which it forms part (judgments of 17 November 1983, Merck, 292/82, EU:C:1983:335, paragraph 12, and of 9 October 2025, Cabris Investments, C‑540/24, EU:C:2025:766, paragraph 33 and the case-law cited).
24 In accordance with the first sentence of Article 25(1) of Regulation No 1215/2012, 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 are to have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State.
25 While it is apparent from the wording of the first sentence of Article 25(1) of Regulation No 1215/2012 that an agreement conferring jurisdiction may be declared null and void on the basis of the law of the Member State whose court or courts is or are designated in that agreement, neither that article nor any other provision of that regulation defines the concept of ‘null and void as to its substantive validity’.
26 According to the usual meaning of the term ‘substantive’, that term is used, in judgments and procedural documents, by way of contrast to the concepts of ‘form’ and ‘admissibility’, which are examined before the court decides on the subject matter of the case, that is to say, on the questions of fact and/or of law on which the claims of the parties are based (see, to that effect, judgment of 27 February 2025, Società Italiana Lastre, C‑537/23, EU:C:2025:120, paragraph 31).
27 Furthermore, it must be pointed out that the first sentence of Article 25(1) of Regulation No 1215/2012 merely lays down a conflict-of-law rule by specifying which national law is applicable as regards the question whether, notwithstanding the fact that all the conditions of validity laid down in that article are satisfied, such an agreement may be null and void on other substantive grounds under that national law (see, to that effect, judgment of 27 February 2025, Società Italiana Lastre, C‑537/23, EU:C:2025:120, paragraph 32).
28 However, in addition to referring to the concept of ‘null and void as to its substantive validity’, Article 25(1) of Regulation No 1215/2012 lays down conditions for validity that pertain to agreements conferring jurisdiction themselves, which include substantive conditions as well as various formal conditions that such an agreement must satisfy (see, to that effect, judgments of 7 July 2016, Hőszig, C‑222/15, EU:C:2016:525, paragraph 33 and the case-law cited, and of 27 February 2025, Società Italiana Lastre, C‑537/23, EU:C:2025:120, paragraph 35).
29 Thus, in order to be valid, an agreement conferring jurisdiction must, in accordance with Article 25(1) of Regulation No 1215/2012, be in writing or evidenced in writing, in a form which accords with practices which the parties have established between themselves, or, in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware.
30 Article 25(1) of Regulation No 1215/2012, by requiring that an agreement conferring jurisdiction satisfy the conditions as to substance and form dictated by that provision, makes it possible to ensure the real consent of the parties in order to avoid, in the interest of protecting the weaker party to the contract, jurisdiction clauses incorporated in a contract by one party going unnoticed (see, to that effect, judgment of 7 July 2016, Hőszig, C‑222/15, EU:C:2016:525, paragraph 36 and the case-law cited).
31 In that regard, the Court has held that the validity of a jurisdiction clause may be subject to compliance with a particular condition as to form only if that condition is linked to the requirements of Article 25 of Regulation No 1215/2012 and that Contracting States are not at liberty to lay down formal requirements other than those laid down in that regulation (see, to that effect, judgment of 16 March 1999, Castelletti, C‑159/97, EU:C:1999:142, paragraphs 35 and 37). The Court has also made it clear that considerations about the links between the court designated and the relationship at issue or about the substantive validity of the agreement conferring jurisdiction are unconnected with those requirements (see, to that effect, judgment of 8 February 2024, Inkreal, C‑566/22, EU:C:2024:123, paragraph 34).
32 It follows that the concept of ‘null and void as to its substantive validity’ used in the last part of the first sentence of Article 25(1) of Regulation No 1215/2012, in so far as the concept necessarily refers to conditions of validity that are different from those pertaining to agreements conferring jurisdiction themselves referred to in that regulation, covers the general grounds for an agreement being null and void that may have an impact on a contractual relationship, namely - in particular - those which vitiate consent, such as error, deceit, violence or fraud, and incapacity to contract, grounds which are laid down by the law of the Member State whose courts are designated (see, to that effect, judgment of 27 February 2025, Società Italiana Lastre, C‑537/23, EU:C:2025:120, paragraph 36).
33 That finding is supported by the origins of that last part of the first sentence of Article 25(1) of Regulation No 1215/2012, which existed neither in Article 23 of Regulation No 44/2001 nor in the first paragraph of Article 17 of the Brussels Convention, and which was intended to introduce a harmonised conflict-of-law rule concerning the substantive validity of choice-of-court agreements, thus ensuring a similar outcome on this matter whatever the court seised and reflecting the solutions established in the Hague Convention on Choice of Court Agreements, concluded on 30 June 2005 (see, to that effect, judgment of 27 February 2025, Società Italiana Lastre, C‑537/23, EU:C:2025:120, paragraph 40). However, the Explanatory Report of Professors Hartley and Dogauchi refers, in paragraphs 125 and 126 thereof, in respect of ‘substantive … grounds of invalidity’, to generally recognised grounds such as mistake, misrepresentation, duress and lack of competence or capacity.
34 In that regard, it must be noted that the condition imposed by Estonian law, according which an agreement conferring jurisdiction applicable between natural persons is valid only if the dispute at issue is connected with the economic or professional activity of those persons, may certainly be compared to the condition of the capacity to contract of the persons in question. However, the condition imposed by Estonian law does not constitute a classic case of lack of capacity of a minor or of an adult under guardianship, but, in reality, refers to the type of (non-personal) activity carried out by the parties to the agreement.
35 Moreover, it should be emphasised, subject to the verifications to be made by the referring court, that that provision of national law is not generally applicable to contractual relationships, as the condition of validity that it imposes is specific to agreements conferring jurisdiction. That condition therefore does not constitute one of the general grounds for invalidity, such as those referred to in paragraph 32 in fine of the present judgment, and can at most be one of the conditions for validity pertaining to such agreements, which are, however, as can be seen from paragraphs 28 to 31 of the present judgment, exhaustively governed by Article 25 of Regulation No 1215/2012.
36 Consequently, such a condition, which is not one of the general grounds for invalidity impacting the contractual relationship between the parties, cannot constitute a ground for an agreement being ‘null and void as to its substantive validity’, within the meaning of the first sentence of Article 25(1) of Regulation No 1215/2012.
37 The interpretation emerging from paragraphs 30 to 36 of the present judgment is supported by the objectives pursued in Article 25 of Regulation No 1215/2012, which seek to respect the autonomy of the parties and enhance the effectiveness of exclusive choice-of-court agreements, as referred to in recitals 15, 19 and 22 of that regulation (judgment of 9 October 2025, Cabris Investments, C‑540/24, EU:C:2025:766, paragraph 43 and the case-law cited).
38 Article 25 of Regulation No 1215/2012 is indeed based on the principle of freedom of choice (see, to that effect, judgment of 18 November 2020, DelayFix, C‑519/19, EU:C:2020:933, paragraph 38) and it is for the sake of that principle that the consensus between the parties may justify the primacy granted to the choice of a court other than that which may have had jurisdiction under Regulation No 1215/2012 (see, to that effect, judgment of 7 February 2013, Refcomp, C‑543/10, EU:C:2013:62, paragraph 26).
39 However, to impose a condition under national law, which renders an agreement conferring jurisdiction invalid if the dispute is not connected with the economic or professional activity of the parties to the agreement, would be contrary to those parties’ freedom of choice.
40 Furthermore, such an interpretation is consistent with the objective pursued by Regulation No 1215/2012, which, as can be seen from, in recitals 4, 6, 15 and 16 thereof, seeks to unify the rules of conflict of jurisdiction in civil and commercial matters in an EU legal instrument which is binding and directly applicable, whereby the EU legislature sought to adopt jurisdiction rules that are highly predictable and transparent in order to ensure legal certainty and facilitate the sound administration of justice (see, to that effect, judgment of 27 February 2025, Società Italiana Lastre, C‑537/23, EU:C:2025:120, paragraph 38).
41 In that regard, the Court has repeatedly held that, in order to attain those objectives, in particular that of legal certainty, it is necessary to strengthen the legal protection of persons established in the European Union, by enabling both the applicant to identify easily the court before which he or she may bring proceedings and the defendant reasonably to foresee the court before which he or she may be sued (see, to that effect, judgment of 27 February 2025, Società Italiana Lastre, C‑537/23, EU:C:2025:120, paragraph 39 and the case-law cited).
42 However, the legal certainty ensured by Regulation No 1215/2012 would be compromised if it were possible, for a national legislature, to lay down additional conditions of validity pertaining to agreements conferring jurisdiction themselves and insisting in particular on the existence of a connection with the type of activity of the parties to the dispute.
43 In light of all the foregoing considerations, the answer to the question referred is that Article 25(1) of Regulation No 1215/2012 must be interpreted as meaning that a condition, imposed by the national law of the Member State whose court has been designated by the parties to an agreement as having jurisdiction, according to which an agreement conferring jurisdiction entered into by natural persons is valid only if the dispute at issue is connected with the economic or professional activity of those parties, does not amount to a ground for that agreement being ‘null and void as to its substantive validity’, within the meaning of that provision.
44 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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.