by Arvid Kerschnitzki, College of Augsburg
On 23 April 2026, Advocate Basic Emiliou revealed his opinion on Case C-799/24 – Babcock Montajes S.A. v Kanadevia Inova Steinmüller GmbH. It provides one other piece to the puzzle that’s the CJEU’s broad interpretation of the time period ‘judgment’ within the Brussels Ia Regulation. On the identical time, the case highlights the persisting issues with procedural coordination underneath the regulation.
I. Information of the case
The info of the case in addition to the procedural historical past have already been summarised intimately by Lino Bernard and Marta Requejo Isidro respectively, right here and right here.
To summarize:
A German and a Spanish firm concluded a contract with an unique choice-of-court settlement in favour of a German courtroom. Regardless of this settlement, the Spanish firm initiated proceedings earlier than a Spanish courtroom in Madrid, in search of cost allegedly owed underneath the contract in reference to a financial institution assure invoked by the German firm. Shortly thereafter, the German firm introduced proceedings earlier than the designated German courtroom in Cologne, in search of a declaration that the Spanish firm was underneath an obligation to reimburse the German firm and/or to pay damages.
The Madrid courtroom affirmed its worldwide jurisdiction with out addressing the choice-of-court settlement, however declined territorial competence and referred the case to the courtroom in San Sebastián (Spain). Though the German firm didn’t problem the Madrid courtroom’s resolution, it subsequently contested the worldwide jurisdiction earlier than the San Sebastián courtroom. This objection was rejected in an interim resolution, with the courtroom counting on the prior dedication of the Madrid courtroom.
In parallel, the German courtroom seized by the German firm dismissed the motion as inadmissible, holding that it was certain, pursuant to Artwork. 36(1) of the Brussels Ia Regulation, to recognise the choice of the San Sebastián courtroom, regardless that the choice-of-court settlement had been disregarded. On attraction, nevertheless, the German appellate courtroom overturned this resolution, discovering that it retained worldwide jurisdiction regardless of the Spanish courtroom’s ruling. This was because of the appellate courtroom’s assertion that the interim resolution didn’t represent a ‘judgment’ throughout the that means of the Brussels Ia Regulation. The Spanish firm appealed to the German Federal Courtroom of Justice, which referred the next inquiries to the Courtroom of Justice of the European Union:
Is the time period ‘judgment’ in Article 36(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the popularity and enforcement of judgments in civil and business issues (‘the Brussels I Regulation’) to be interpreted to the impact that the courtroom of a Member State on which an settlement as referred to in Article 25 of the Brussels I Regulation confers unique jurisdiction (Article 31(2) of the Brussels I Regulation) should recognise a judgment by which a non-designated courtroom of a Member State finds that the courts of that Member State have worldwide jurisdiction if the judgment in query is an interim judgment, in different phrases, just isn’t a call which terminates a dispute?
If the reply to Query 1 is, in precept, within the affirmative: Does recognition of the interim judgment additionally rely upon whether or not the interim judgment affirming the worldwide jurisdiction of the courts of the Member State is binding on the non-designated courtroom itself and/or whether or not the affirmation of worldwide jurisdiction could also be diversified within the context of an attraction?
II. Opinion of Advocate Basic Emiliou
AG Emiliou addressed the questions collectively, understanding them as asking ‘whether or not an interim resolution adopted by a courtroom of a Member State, during which that courtroom (solely) declares itself to have worldwide jurisdiction, however which doesn’t but make any dedication on the deserves of the declare, is roofed by the idea of “judgment” throughout the that means of Artwork. 36(1) of Regulation No 1215/2012 and should subsequently be recognised in accordance with that provision, even when that call allegedly contradicts an unique choice-of-court settlement designating the courts of one other Member State.’ (para 27).
He begins by emphasising that an infringement of a choice-of-court settlement can’t justify refusal of recognition (paras 38–56). That is primarily based on the prohibition of a révision au fond (para 39), as additionally confirmed by the Gjensidige judgement (C?90/22) (para 42).
Turning to the central problem – whether or not an interim resolution by which a courtroom of a Member State declares itself to have jurisdiction, allegedly in breach of a choice-of-court settlement, constitutes a ‘judgment’ throughout the that means of Artwork. 2(a) of the Brussels Ia Regulation – AG Emiliou depends on the Courtroom’s case regulation, particularly Maersk (Joined Circumstances C-345/22 to C-347/22) and Gothaer (C-456/11), to point out that procedural choices should not excluded from the idea of a ‘judgment’ (para 67–73). Whereas acknowledging that these instances don’t immediately handle the current problem (para 69), he argues that there isn’t a convincing cause to differentiate between a call declining jurisdiction (as in Gothaer) and one confirming jurisdiction (as within the current case) (para 79).
The AG then highlights the significance of the idea of ‘judgment’ within the context of lis pendens (para 74). He notes that the right functioning of the duty to say no jurisdiction underneath Artwork. 29(3) could be unsure if a purely jurisdictional resolution weren’t thought to be a ‘judgment’ able to recognition (para 76).
AG Emiliou emphasises that, though safeguarding the sensible effectiveness of choice-of-court agreements is a authentic concern, the safety afforded by Artwork. 31(2) doesn’t justify excluding choices containing solely jurisdictional findings from the idea of a ‘judgment’ throughout the that means of the Regulation (paras 86–88). Refusing recognition of such an interim resolution would successfully allow parallel proceedings and thereby create a threat of conflicting judgments – undermining the very targets of the lis pendens guidelines (para 89). In such circumstances, Artwork. 29(3) ought to take priority over Artwork. 31(2) as soon as it turns into clear that parallel proceedings can’t be averted via the mechanisms of Artwork. 31(2) (para 90).
Lastly, AG Emiliou argues that the duty to say no jurisdiction underneath Artwork. 29(3) might come up at totally different levels of the proceedings, relying on whether or not the defendant remains to be capable of contest jurisdiction. The courtroom second seised ought to solely decline jurisdiction as soon as it may be safely assumed that the courtroom first seised will proceed to look at the case on the deserves (para 96). Referring to the wording of Artwork. 38(a), he concludes that the duty to recognise a judgment containing solely a jurisdictional dedication might come up no matter whether or not that judgment is closing. Against this, the duty to say no jurisdiction underneath Artwork. 29(3) arises solely as soon as the jurisdiction of the courtroom first seised has been established in such a means that it might probably not be contested (para 98).
In response to the second query referred, Emiliou additional suggests {that a} jurisdictional dedication might produce res judicata results which can’t subsequently be put aside by the courts with precedence (paras 99–101).
To summarise the Opinion of AG Emiliou: an interim resolution, even when given in breach of a choice-of-court settlement, constitutes a ‘judgment’ throughout the that means of Artwork. 2(a) of the Regulation and have to be recognised. Whereas the duty of recognition arises no matter whether or not the choice is closing, the duty of the courtroom designated within the choice-of-court settlement to say no jurisdiction underneath Artwork. 29(3) arises solely as soon as the jurisdiction of the courtroom first seised can not be contested within the ongoing proceedings.
III. Remark
The current proceedings will possible make an extra contribution to the CJEU’s rising, controversial line of case regulation on what constitutes a ‘judgment’ able to recognition throughout the that means of Artwork. 36 of the Brussels Ia Regulation. Outstanding examples embody H Restricted (C-568/20), London Steam-Ship (C-700/20) and Gothaer (C-456/11), all of that are referenced within the Opinion (Fn. 32, 34, 39).
Up to now, the Courtroom has persistently adopted a broad interpretation of this idea, however substantial criticism from students. The Opinion of AG Emiliou continues this method by decoding ‘judgment’ throughout the that means of the Regulation as encompassing interim choices, even the place they’re given in breach of Artwork. 31(2).
Despite the fact that (German) scholarship stays cautious with regard to the popularity of such choices, the reasoning of AG Emiliou is basically convincing, albeit with some caveats.
The principle reservation considerations his argument that the duty to say no jurisdiction underneath Artwork. 29(3) must be bolstered by treating jurisdictional choices as recognisable judgments (paras 76–78). This step doesn’t seem crucial. As he himself acknowledges (para 78), the identical line of reasoning may result in the other conclusion, particularly that Artwork. 29(3) already supplies a ample mechanism, making the popularity of an interim judgment in such circumstances superfluous.
Nevertheless, the Opinion stays firmly in step with the Courtroom’s current case regulation, with the judgment in Gothaer (see particularly Nr. 79). It’s convincing in emphasising that, whereas the Regulation seeks to guard choice-of-court agreements, the prevention of parallel proceedings – and thus of conflicting judgments – carries larger weight (paras 89–90). That is additional underpinned by the emphasis on mutual belief and the free circulation of judgments (paras 38–40, 82, 85, 87).
It’s, nevertheless, considerably shocking that AG Emiliou initially depends on Artwork. 29(3) as a key argument in favour of recognising the interim judgment, but finally maintains a substantive distinction between the duty to recognise such a judgment underneath Artwork. 36(1) and the duty to say no jurisdiction underneath Artwork. 29(3). Within the current case, this distinction doesn’t seem to have an effect on the result. It stays to be seen during which conditions it’d result in totally different outcomes.
Finally, nevertheless, the case reveals a extra elementary problem. As Lino Bernard has aptly noticed, it’s, in essence, involved with procedural coordination underneath the Brussels Ia Regulation. Since a violation of the lis pendens guidelines doesn’t represent a floor for refusal of recognition (Liberato – C-386/17; see additionally AG Emiliou’s Opinion, Nr. 53), the query whether or not an interim resolution is able to recognition turns into significantly important on this context. Against this, if the lis pendens guidelines had been enforced on the degree of Artwork. 45(1), the difficulty of recognisability could be far much less consequential, as recognition could possibly be refused on that foundation.
On this regard, it’s outstanding that AG Emiliou’s resolution prima facie strengthens (see para 76) the lis pendens guidelines on the stage of recognition. It might present a workable interim resolution for the precept of precedence underneath Artwork. 29(1) and (3). However on the identical time, as the current case illustrates, it sacrifices the safety of choice-of-court agreements underneath Artwork. 31(2). This might conceivably create new alternatives to misuse the lis pendens guidelines and encourage a race to the courts, significantly for claimants with the power to persuade the courtroom to problem an early interim resolution.
Accordingly, the case as soon as once more highlights the necessity to elevate the complete lis pendens regime to a floor for refusal of recognition. Encouragingly, the Fee’s Report on the applying of the Brussels Ia Regulation means that the recast might handle this problem.
Unbiased of any reform of the Regulation, it stays to be seen whether or not the Courtroom will observe AG Emiliou’s broad understanding of ‘judgment’ and proceed its line of extending the interpretation of that idea throughout the that means of the Regulation.
