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)

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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}
Offentligt
KOM (2025) 0268 - SWD-dokument
Europaudvalget 2025
1
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.
2
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’).
3
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.
4
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.
5
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.
6
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.
7
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).
8
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.
9
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.
10
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.
11
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.
12
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.
13
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, Joined Cases C-345/22 to C-347/22,
ECLI:EU:C:2024:349.
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.