Request for a preliminary ruling from the Cour de cassation (France) lodged on 22 August 2023 – Societa Italiana Lastre SpA v Agora
(Case C-537/23, Societa Italiana Lastre SpA)
Language of the case: French
Referring court
Cour de cassation
Parties to the main proceedings
Applicant: Societa Italiana Lastre SpA (SIL)
Defendant: Agora SARL
Questions referred
Where there is an asymmetric jurisdiction clause which gives only one of the parties the ability to select a court which is competent under the rules of ordinary law but which differs from the court named in that clause and where the other party maintains that the clause is unlawful because it is too imprecise and/or because it is one-sided, should that matter be determined in accordance with autonomous rules derived from Article 25(1) of the Brussels Ia 1 Regulation and the objective of foreseeability and legal certainty pursued by that regulation, or should it be determined by applying the law of the Member State designated by the clause? To put it another way, does it pertain to the substantive validity of the clause, within the meaning of that provision? Or should the substantive validity of the clause be interpreted strictly and regarded as relating purely to the material grounds for invalidity, which are principally fraud, error, deceit, violence and incapacity?
If the question of whether the clause is imprecise or one-sided is to be determined in the light of autonomous rules, must Article 25(1) of the Brussels Ia Regulation be interpreted as meaning that a clause should or should not be applied if it allows one party to bring proceedings before only one court but allows the other party to bring proceedings either before that same court or before any other court which has competence under ordinary law?
3. If the asymmetry of a clause amounts to a substantive condition, how is Article 25(1) of the Brussels Ia Regulation to be interpreted, in particular the requirement to refer to the law of the State of the designated court in a situation where multiple courts are designated by the clause, or where the clause designates one court but leaves it open to one of the parties to choose a different court but where this choice has not yet been exercised on the date when a court is seised of the matter:
– is the applicable national law that of the sole court to be expressly designated, even if proceedings could equally be brought before other courts?
– if multiple courts have been designated, is it possible to refer to the law of the court before which proceedings have actually been brought?
lastly, in view of recital 20 of the Brussels Ia Regulation, should reference to the law of the Member State designated be understood to mean the material rules of the State or its conflict-of-law rules?
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1 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).