OPINION OF ADVOCATE GENERAL
RICHARD DE LA TOUR
delivered on 23 March 2023 (1)
Case C‑590/21
Charles Taylor Adjusting Limited,
FD
v
Starlight Shipping Company,
Overseas Marine Enterprises Inc.
(Request for a preliminary ruling from the Areios Pagos (Court of Cassation, Greece))
(Reference for a preliminary ruling – Area of freedom, security and justice – Judicial cooperation in civil matters – Regulation (EC) No 44/2001 – Recognition and enforcement in a Member State of judgments issued by another Member State – Article 34 – Grounds for refusal – Infringement of public policy of the Member State in which recognition and enforcement are sought – Definition of ‘public policy’ – Decision preventing the continuation of proceedings commenced before the courts of another Member State or the exercise of the right to judicial protection)
I. Introduction
1. This request for a preliminary ruling lodged by the Areios Pagos (Court of Cassation, Greece) concerns the interpretation of Article 34(1) and Article 45(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (2)
2. The request has been made in proceedings concerning the recognition and enforcement by a court of a Member State of judgments issued by a court of another Member State which have the effect of deterring parties which had brought proceedings before another court of the former Member State from continuing the proceedings pending before it.
3. It will require that the Court of Justice determine whether the recognition and enforcement of an order to those applicants to pay compensation in respect of the costs of those proceedings, based on the infringement of a settlement agreement terminating a previous action brought by them and imposed by the court designated in that agreement, can be refused as being contrary to public policy within the meaning of Article 34(1) of Regulation No 44/2001.
4. I will set out the reasons why I am of the view that, in such a situation, the principles which led the Court to decide that an anti-suit injunction, namely an injunction intended to prohibit a person from commencing or continuing proceedings before the courts of another Member State, is incompatible with the system established by Regulation No 44/2001, must also be applied.
II. Legal framework
5. Article 34(1) of Regulation No 44/2001 provides:
‘A judgment shall not be recognised:
1. if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought.’
6. Under Article 45(1) of that regulation:
‘The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only on one of the grounds specified in Articles 34 and 35. It shall give its decision without delay.’
III. The facts of the main proceedings and the questions referred for a preliminary ruling
7. On 3 May 2006, the vessel Alexandros T sank and was lost, along with its cargo, off the bay of Port Elizabeth (South Africa). The companies Starlight Shipping Company (3) and Overseas Marine Enterprises Inc. (4) – the owner and operator of that vessel, respectively – requested that the insurers of that vessel pay an indemnityon the basis of their contractual liability arising from the occurrence of the insured incident.
8. In view of the refusal of those insurers, Starlight, during the same year, brought proceedings against them before the court having jurisdiction in the United Kingdom of Great Britain and Northern Ireland and, in respect of one of the insurers, by resorting to arbitration. While those proceedings were pending, Starlight, OME and the insurers of the vessel concluded settlement agreements (5) which put an end to the proceedings between the parties. The insurers paid, on the basis of the occurrence of the insured incident and within an agreed period, the insurance indemnity provided for in the insurance contracts, in full and final settlement of all claims in connection with the loss of the vessel Alexandros T.
9. Those agreements were ratified on 14 December 2007 and 7 January 2008 by the English court before which the action was pending. It ordered the suspension of any and all subsequent proceedings on the case concerned arising from the same action.
10. Following the conclusion of those agreements, Starlight and ΟΜΕ, along with the other owners and the natural persons legally representing them, brought several actions before the Polymeles Protodikeio Peiraios (Court of First Instance, Piraeus, Greece), including, in particular, those of 21 April 2011 and 13 January 2012, against Charles Taylor Adjusting Limited, (6) a legal and technical consultancy which had defended the insurers of the vessel Alexandros T against the claims made by Starlight before the English court, and against FD, the director of that consultancy.
11. By those new actions, which were actions in tort, Starlight and ΟΜΕ sought compensation in respect of the material and non-material damage which they had allegedly suffered as a result of the false and defamatory allegations concerning them for which the vessel’s insurers and their representatives were responsible. Starlight and ΟΜΕ maintained that, when the initial proceedings for payment of the indemnities owed by the insurers were still pending and the refusal to pay the insurance indemnity persisted, the underwriters and representatives of those insurers had, in the presence of the Ethniki Trapeza tis Ellados (National Bank of Greece), the mortgage creditor of the owner of the sunken vessel and on the insurance market, in particular, spread the false rumour that the loss of the vessel was caused by serious defects in it, of which its owners were aware.
12. In 2011, while those actions were pending, the insurers of the vessel and their representatives, including, in particular, Charles Taylor and FD, the defendants in these proceedings, brought actions against Starlight and ΟΜΕ before the English courts seeking a declaration that the actions brought in Greece constituted infringements of the settlement agreements and requesting that their applications for declarative relief and compensation be granted.
13. Following proceedings at all stages before the English courts, those actions gave rise, on 26 September 2014, to a judgment and two orders of a judge of the High Court of Justice (England & Wales), Queen’s Bench Division (Commercial Court) (United Kingdom; ‘the High Court’), (7) based on the content of the settlement agreements and on the choice of jurisdiction clause designating that court and awarding the applicants compensation in respect of the proceedings instituted in Greece as well as payment of their costs incurred in England. (8)
14. The Monomeles Protodikeio Peiraios, Naftiko Tmima (Court of First Instance (single judge), Piraeus, Maritime Division, Greece) granted the application made by Charles Taylor and FD on 7 January 2015 seeking recognition of those judgments and a declaration of partial enforceability in Greece, under Regulation No 44/2001.
15. On 11 September 2015, Starlight and OME brought an appeal (9) against that judgment before the Monomeles Efeteio Peiraios Naftiko Tmima (Court of Appeal (single judge), Piraeus, Maritime Division, Greece).
16. By a judgment of 1 July 2019, that court allowed their appeal on the ground that the judgments in respect of which recognition and enforcement are sought contain ‘quasi’ anti-suit injunctions which impede the action of the persons concerned before the Greek courts, in breach of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (10) and Article 8(1) and Article 20 of the Syntagma (Greek Constitution), articles which go to the very heart of the concept of ‘public policy’ in Greece.
17. Charles Taylor and FD brought an appeal on a point of law against that decision before the Areios Pagos (Court of Cassation). They take the view that the judgment and orders of the High Court are not manifestly contrary to national and EU public policy and do not infringe fundamental principles thereof. They submit that the fact that they were awarded provisional damages on the basis of proceedings commenced in Greece before the actions at issue were brought before the English courts did not prohibit the persons concerned from having continued access to the Greek courts and to judicial protection by them. Consequently, the judgment and orders of the High Court were wrongly treated as though they were anti-suit injunctions.
18. In these circumstances, the Areios Pagos (Court of Cassation) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Is the expression “manifestly contrary to public policy” in the [European Union] and, by extension, to domestic public policy, which constitutes a ground for non-recognition and non-enforcement pursuant to point 1 of Article 34 and Article 45(1) of Regulation No 44/2001, to be understood as meaning that it extends beyond explicit anti-suit injunctions prohibiting the commencement and continuation of proceedings before a court of another Member State to judgments or orders delivered by courts of Member States where: (i) they impede or prevent the claimant in obtaining judicial protection by the court of another Member State or from continuing proceedings already commenced before it; and (ii) is that form of interference in the jurisdiction of a court of another Member State to adjudicate a dispute of which it has already been seised, and which it has admitted, compatible with public policy in the EU? In particular, is it contrary to public policy in the EU within the meaning of point 1 of Article 34 and Article 45(1) of Regulation No 44/2001, to recognise and/or declare enforceable a judgment or order of a court of a Member State awarding provisional damages to claimants seeking recognition and a declaration of enforceability in respect of the costs and expenses incurred by them in bringing an action or continuing proceedings before the court of another Member State, where the reasons given are that: (a) it follows from an examination of that action that the case is covered by a settlement duly established and ratified by the court of the Member State delivering the judgment (or order); and (b) the court of the other Member State seised in a fresh action by the party against which the judgment or order was delivered lacks jurisdiction by virtue of a clause conferring exclusive jurisdiction?
(2) If the first question is answered in the negative, is point 1 of Article 34 of Regulation No 44/2001, as interpreted by the Court of Justice of the European Union, to be understood as constituting a ground for non-recognition and non-enforcement in Greece of the judgment and orders delivered by a court of another Member State (the United Kingdom), as described under [(1)] above, where they are directly and manifestly contrary to national public policy in accordance with fundamental social and legal perceptions which prevail in Greece and the fundamental provisions of Greek law that lie at the very heart of the right to judicial protection (Articles 8 and 20 of the Greek Constitution, Article 33 of the [Astikos Kodikas (Greek Civil Code)] and the principle of protection of that right that underpins the entire system of Greek procedural law, as laid down in [Article 176, Article 173(1) to (3) and Articles 185, 205 and 191] of the [Kodikas Politikis Dikonomias (Greek Code of Civil Procedure)] cited in paragraph 6 of the statement of reasons) and Article 6(1) of the [European Convention on Human Rights], such that, in that case, it is permissible to disapply the principle of EU law on the free movement of judgments, and is the non-recognition resulting therefrom compatible with the views that assimilate and promote the European perspective?’
19. Charles Taylor and FD, Starlight and OME, the Greek and Spanish Governments and the European Commission lodged written observations.
IV. Analysis
20. By its first question, the referring court asks, in essence, whether Article 34(1) of Regulation No 44/2001 must be interpreted as meaning that a court of a Member State can refuse to recognise and enforce a decision on the ground that it is contrary to public policy based on the fact that that decision prevents the continuation of proceedings pending before another court of that Member State, in that it awards to one of the parties provisional damages in respect of the costs and expenses incurred by it in bringing those proceedings, where the reasons given are, first, that the subject matter of those proceedings is covered by a settlement duly established and ratified by the court of the Member State delivering that decision, and, second, that the court of the other Member State before which those proceedings were brought lacks jurisdiction by virtue of a clause conferring exclusive jurisdiction.
21. In this case, the judgment and orders of the High Court for which recognition and enforcement are sought before a Greek court were delivered on 26 September 2014. Regulation No 44/2001 is applicable ratione temporis to the case in the main proceedings. (11)
22. That regulation contains specific rules on the recognition and enforcement of judgments which need to be restated, (12) although it should be pointed out that not all of them were retained in Regulation No 1215/2012.
A. Restatement of the rules on recognition and enforcement applicable to the dispute
23. Regulation No 44/2001 provides that ‘a judgment given in a Member State shall be recognised in the other Member States without any special procedure being required’. (13) Any interested party who raises the recognition of a judgment as the principal issue in a dispute may apply for a decision that the judgment be recognised. (14) For the purposes of enforcing the judgment, a procedure is laid down in Article 38 of that regulation for obtaining, upon application, a declaration of its enforceability in the Member State in which recognition is sought. (15)
24. No review of the substance is conducted at this stage. (16)
25. Under Article 45(1) of Regulation No 44/2001, a court may refuse or revoke a declaration of enforceability on one of the grounds of non-recognition stated in Articles 34 and 35 of that regulation only in the context of an appeal against the judgment relating to the application for such a declaration provided for in Article 43(1) of that regulation. (17)
26. Four general grounds of non-recognition of a judgment are set out in Article 34 of Regulation No 44/2001. (18) Paragraph 1 of that article refers to the case in which ‘recognition is manifestly contrary to public policy in the Member State in which recognition is sought’. Under Article 35(3) of that regulation, the test of public policy may not be applied to the rules relating to jurisdiction. (19)
27. The referring court asks whether that ground is applicable in the light of the particular circumstances of the case before it.
B. The particular circumstances of the case in the main proceedings
28. Several factors relating to the procedural context and content of the judgments at issue are worth noting.
1. The procedural context
29. The order for reference concerns the interpretation of the ground for non-recognition and non-enforcement of a judgment because such recognition is contrary to public policy in a procedural context which presents the following characteristics:
– settlement agreements providing for the exclusive jurisdiction of an English court were signed by the parties in the main proceedings in the context of an action brought by Starlight on a contractual basis;
– the defendants in the action for liability in tort brought by Starlight and OME before a Greek court after those agreements were concluded obtained from that English court decisions upholding their application for declaratory relief and awarding them an interim payment on account of damages relating to the costs of the proceedings before the Greek court and the payment of sums relating to costs incurred before that English court; and
– as Charles Taylor and FD have pointed out, the recognition and enforcement of that judgment depend on its subject matter.
2. The content of the decisions at issue as set out by the referring court
30. The referring court’s questions arise from the content of the judgment and orders of the High Court which it draws from the application made by Charles Taylor and FD.
31. First, those decisions are based on a twofold finding. It was held, by judgment, that the actions brought in Greece infringe the settlement agreements. (20) Those agreements were concluded between the parties which had all been concerned in the proceedings in England and in the arbitration proceedings by allegations that they had been involved in a collective tortious act. The effect produced by those agreements is that any action directed against those parties, on the same ground as that constituting the basis of the proceedings brought in Greece against them, has already been settled by the same agreements, under the joint tortfeasor rule.
32. Furthermore, by orders of the High Court, it was also held that the actions before the Greek courts were brought in breach of the exclusive jurisdiction clause.
33. Second, by two separate orders, Starlight and OME were ordered to pay:
– on the basis of the judgment of the High Court establishing the principle to be applied to the claim and its amount, (21) an interim payment on account of damages due in respect of the proceedings brought in Greece, amounting to a total of 100 000 pounds sterling (GBP) (approximately EUR 128 090), (22) payable no later than 16.30 on 17 October 2014, to cover all losses incurred up to and including 9 September 2014; and
– two sums to cover the costs of the proceedings before the English court, amounting to GBP 120 000 (approximately EUR 153 708), and GBP 30 000 approximately EUR 38 527), payable within the same period, by way of full compensation.
34. Third, additional terms are contained in the orders of the High Court in respect of which recognition and a declaration of enforceability were requested from the Greek courts. The referring court restates them as follows:
– ‘the two orders [of the High Court] even include, at their beginning, injunctions warning Starlight and OME, and the natural persons representing them that, if they fail to comply with the order, they may be held in contempt of court, their assets may be confiscated, or they may be fined or the natural persons imprisoned (paragraphs 1 to 5)’.
– ‘Those orders also contain the following points which were also not included in the appellants’ application (recognition and a declaration of enforceability were not requested for these passages):
“4. A decision setting the amount of compensation will be taken against each of the companies Starlight and OME.
5. It will be possible to bring applications for payment of more interim payments on account of those damages [this evidently refers to the situation in which the proceedings before the Greek courts are continued and the applicants’ costs are thereby multiplied (23)].”’
– ‘And the first order additionally contains the following injunctions:
“8. … each of the companies Starlight and OME will conclude an agreement stipulating that the CTa parties [(24)] are relieved of all liability in respect of any claims that Starlight and OME may have in the actions brought in Greece against each of the CTa parties, in accordance with the model agreement attached to this order, and Starlight and OME must return the signed originals to the CTa parties’ lawyers …
9. If Starlight and OME cannot be located by a reasonable search or if they fail or refuse to sign the agreements by the aforementioned date, an application can be made to Judge Kay QC who will himself enforce those agreements.”’
35. In these circumstances, the question arises as to the classification of the judgments for which recognition and enforcement are sought.
C. Classification of the decisions at issue
36. The referring court states that the judgment and orders of the High Court whose exclusive jurisdiction was chosen by the parties in the settlement agreements determine the effects of those agreements on the proceedings pending before the Greek courts.
37. Although those decisions are not directly addressed to the Greek court and do not formally prohibit the continuation of the proceedings before it, they contain grounds relating to the Greek court’s jurisdiction in the light of the settlement agreements concluded between the parties and pecuniary awards, including the award of an interim payment on account of damages which acts as a deterrent in that it is not a final amount and depends on the continuation of those proceedings. (25) Moreover, they are accompanied by indissociable penalties and injunctions with a view to ensuring that they are enforced. (26) They are addressed in personam to Starlight and ΟΜΕ in order to prevent them from infringing the settlement agreements containing the choice of jurisdiction clause. (27)
38. On the basis of all of those considerations, the referring court is justified, in my view, in classifying the judgment and orders of the High Court as ‘“quasi” anti-suit injunction proceedings’ (28) and in focusing more particularly on the decisions awarding damages for which recognition and enforcement are sought.
39. I am therefore of the opinion that the referring court is right in asking whether the effects of any recognition and enforcement of those decisions are compatible with Regulation No 44/2001 by referring to the Court’s case-law on the handing down of an anti-suit injunction (29) in order to derive from it a ground of being contrary to public policy.
D. Principles of case-law applicable to anti-suit injunctions
1. Incompatibility with the principle of mutual trust in the review of the jurisdiction of a court of a Member State by a court of another Member State
40. According to the Court’s settled case-law, (30) the EU law on jurisdiction precludes the grant of an injunction by a court prohibiting a party from commencing or continuing legal proceedings before a court of another Member State, (31) since it interferes with the latter’s jurisdiction to resolve the dispute before it. Such interference is incompatible with the scheme of the Brussels Convention and with Regulation No 44/2001, which is based on the principle of mutual trust.
41. Moreover, the Court has rejected various grounds relied on in order to justify such interference:
– the fact that it is only indirect and is intended to prevent an abuse of process by the defendant in the proceedings in the forum State. The Court held that the judgment made as to the abusive nature of the conduct for which the defendant was criticised, consisting of recourse to the jurisdiction of another Member State, implies an assessment of the appropriateness of bringing proceedings before a court of another Member State; (32) and
– the fact of being a party to arbitration proceedings. (33)
42. Thus, the now-settled general principle emerges from that case-law that every court seised is itself to determine, under the rules applicable to it, whether it has jurisdiction to resolve the dispute before it, (34) and a party cannot be deprived, on pain of a penalty, of the possibility of bringing proceedings before a court of a Member State which will verify whether it has jurisdiction. (35)
2. Exceptions to the principle of non-review of jurisdiction limited by the EU legislature
43. The Court’s case-law states that exceptions to that general principle are authorised to a limited extent by Regulation No 44/2001, that they concern only the stage of recognition or enforcement of judgments and that they are intended to ensure the application of certain rules on special or exclusive jurisdiction laid down only in that regulation. (36)
44. Therefore, in my view, it must be inferred from this that the EU legislature considered that agreements between parties who undertake to refer their disputes to arbitration or designate a court to hear them have no effect on the application of the principle of non-review of jurisdiction. (37)
45. The Court has not yet ruled on the latter case. (38) In my view, by analogy with the approach adopted on arbitration in the judgment in Allianz and Generali Assicurazioni Generali, (39) a party which brings proceedings before the court of a Member State because it considers that the jurisdiction clause to which it agreed is not applicable cannot be deprived of the judicial protection to which it is entitled. (40)
46. The basis of the prohibition of anti-suit injunctions within the European Union, which is the mutual trust between courts and the absence of any particular provision in Regulation No 1215/2012, which replaced Regulation No 44/2001, justify the extension of the case-law of the Court to cases in which exclusive jurisdiction has been conferred on a court under an agreement between the parties. (41) The effectiveness of that regulation is thereby guaranteed. (42)
E. The ground based on public policy justifying the refusal to recognise and enforce anti-suit injunctions
47. The assessment provided for in Article 34(1) of Regulation No 44/2001 (43) of whether recognition is manifestly contrary to the public policy of the Member State in which recognition is sought relates to the effects produced by the foreign judgment if it is recognised or enforced, (44) in the light of a European conception of public policy. (45)
48. According to the Court’s case-law, Article 34(1) of Regulation No 44/2001 must be interpreted strictly inasmuch as it constitutes an obstacle to the attainment of one of the fundamental objectives of that regulation. Therefore, it may be relied on only in exceptional cases. The Court reviews the limits within which the courts of a Member State may have recourse to that concept for the purpose of refusing recognition to a judgment emanating from another Member State. (46)
49. As regards procedural public policy, (47) the Court adopted a broad definition of the concept referred to in Article 34(1), by holding that it may be relied on, in the event of an obstacle to the right to an effective remedy guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union. (48)
50. In the present case, the referring court’s question concerns the recognition and enforcement of judgments, based in particular on the infringement of a choice of jurisdiction clause contained in settlement agreements, taken by the court designated by the parties, which determines their financial consequences. (49) In particular, those judgments require that the parties to those agreements, who did not initially bring proceedings before that court, incur, in advance, damages relating to the costs borne by the other parties sued in another Member State.
51. Accompanied by measures intended to ensure their enforcement, those decisions, which were not made on a precautionary basis, provide for the award of other damages in the event of the continuation of the proceedings before the Greek court. By their effects, they therefore considerably exceed the framework of interpretation of settlement agreements and of the review of its jurisdiction by the court designated by the parties to those agreements. (50)
52. Accordingly, when viewed in their proper context, specifically the orders of the High Court undeniably have the effect of deterring the parties concerned from bringing their action. For that reason alone, they indirectly impede access to the sole court seised of the substance of the dispute which, under Regulation No 44/2001, has the power to rule on its jurisdiction, bring the proceedings to their conclusion and rule on the costs of the proceedings brought before it and any claims for compensation relating thereto.
53. Considering that it is for that court to conduct a comprehensive assessment of the proceedings and all the circumstances, (51) the referring court submits – rightly, in my view – that recognition and enforcement of the judgment and orders of the High Court are manifestly incompatible with the public policy of the forum State, arguing that they infringe the fundamental principle, in the European judicial area based on mutual trust, (52) that every court is to rule on its own jurisdiction. I would recall that that principle led the Court to state that, in all circumstances, it precludes the giving of decisions directly or indirectly prohibiting the continuation of proceedings brought in another Member State.
54. In other words, by virtue of the systemic foundation of that prohibition, no exception to it can be admitted, unless it gives effect to a decision which would have been prohibited in direct proceedings.
55. Therefore, I propose that the Court answer the first question for a preliminary ruling in the affirmative and, accordingly, find that there is no need to answer the second question.
V. Conclusion
56. In the light of all the foregoing considerations, I propose that the Court of Justice answer the questions referred for a preliminary ruling by the Areios Pagos (Court of Cassation, Greece) as follows:
Article 34(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
must be interpreted as meaning that a court of a Member State can refuse to recognise and enforce a decision on the ground that it is contrary to public policy based on the fact that that decision prevents the continuation of proceedings pending before another court of that Member State, in that it awards to one of the parties provisional damages in respect of the costs and expenses incurred by it in bringing those proceedings, where the reasons given are, first, that the subject matter of those proceedings is covered by a settlement duly established and ratified by the court of the Member State delivering that decision, and, second, that the court of the other Member State before which those proceedings were brought lacks jurisdiction by virtue of a clause conferring exclusive jurisdiction.