OPINION OF ADVOCATE GENERAL
COLLINS
delivered on 16 November 2023(1)
Joined Cases C‑345/22 to C‑347/22
Maersk A/S
v
Allianz Seguros y Reaseguros SA (C‑345/22 and C‑347/22)
and
Mapfre España Compañía de Seguros y Reaseguros SA
v
MACS Maritime Carrier Shipping GmbH & Co. (C‑346/22)
(Requests for a preliminary ruling from the Audiencia Provincial de Pontevedra (Provincial Court, Pontevedra, Spain))
(Reference for a preliminary ruling – Judicial cooperation in civil and commercial matters – Regulation (EU) No 1215/2012 – Article 25(1) – Contract for the carriage of goods by sea evidenced by a bill of lading – Jurisdiction clause incorporated in the bill of lading – Enforceability against the third-party holder of the bill of lading – Applicable law – National legislation requiring the individual and separate negotiation of the jurisdiction clause by the third-party holder of the bill of lading)
Introduction
1. By the present requests for a preliminary ruling, the Audiencia Provincial de Pontevedra (Provincial Court, Pontevedra, Spain) seeks the Court’s guidance as to 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 (‘the Brussels Ia Regulation’). (2) These requests are made in the context of proceedings between Maersk A/S (‘Maersk’), a Danish maritime transport operator, and Allianz Seguros y Reaseguros SA (‘Allianz’), a Spanish insurance company, in Cases C‑345/22 and C‑347/22, and Mapfre España Compañía de Seguros y Reaseguros SA (‘Mapfre’), a Spanish insurance company, and MACS Maritime Carrier Shipping GmbH & Co. (‘MACS’), a German transport company, in Case C‑346/22. Each of these actions is a claim for damages on foot of the partial loss of goods transported by sea. They raise the issue as to the conditions under which a jurisdiction clause in a contract for the carriage of goods by sea evidenced by a bill of lading may be enforced against a third party that subsequently acquired those goods, thereby becoming a third-party holder of that bill of lading.
Legal framework
European Union law
The Brussels Convention
2. The first paragraph of Article 17 of the Brussels Convention provides:
‘If the parties, one or more of whom is domiciled in a Contracting State, have agreed that a court or the courts of a Contracting 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 exclusive jurisdiction. Such an agreement conferring jurisdiction shall be either:
(a) in writing or evidenced in writing, or
(b) in a form which accords with practices which the parties have established between themselves, or
(c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.’
The Brussels I Regulation
3. Article 23(1) of the Brussels I Regulation states:
‘If the parties, one or more of whom is domiciled in a Member State, 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. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either:
(a) in writing or evidenced in writing; or
(b) in a form which accords with practices which the parties have established between themselves; or
(c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.’
The Brussels Ia Regulation
4. Recitals 15, 19 and 20 of the Brussels Ia Regulation read as follows:
‘(15) The rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile. Jurisdiction should always be available on this ground save in a few well-defined situations in which the subject matter of the dispute or the autonomy of the parties warrants a different connecting factor. …
…
(19) The autonomy of the parties to a contract, other than an insurance, consumer or employment contract, where only limited autonomy to determine the courts having jurisdiction is allowed, should be respected subject to the exclusive grounds of jurisdiction laid down in this Regulation.
(20) Where a question arises as to whether a choice-of-court agreement in favour of a court or the courts of a Member State is null and void as to its substantive validity, that question should be decided in accordance with the law of the Member State of the court or courts designated in the agreement, including the conflict-of-laws rules of that Member State.’
5. Article 25 of the Brussels Ia Regulation, in Section 7 headed ‘Prorogation of jurisdiction’, which is in Chapter II of that regulation, itself headed ‘Jurisdiction’, provides:
‘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:
(a) in writing or evidenced in writing;
(b) in a form which accords with practices which the parties have established between themselves; or
(c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.
…
5. An agreement conferring jurisdiction which forms part of a contract shall be treated as an agreement independent of the other terms of the contract.
The validity of the agreement conferring jurisdiction cannot be contested solely on the ground that the contract is not valid.’
National law
6. Section XI of the preamble to Ley 14/2014, de 24 de julio, de Navegación Marítima (Shipping Law 14/2014; ‘the LNM’) of 24 July 2014 (3) reads as follows:
‘…
Chapter I contains the special rules of jurisdiction and competence and, proceeding on the basis of the preferential application in this matter of the rules in international agreements and the law of the European Union, seeks to prevent the abuses identified, by declaring void clauses which provide for submission to a foreign jurisdiction or to arbitration abroad, contained in contracts for the use of a ship or in ancillary shipping contracts, if those clauses have not been individually and separately negotiated.
…’
7. Article 251 of the LNM, entitled ‘Effectiveness of transfer’, provides:
‘Delivery of a bill of lading shall have the same effects as delivery of the goods represented by the bill, without prejudice to the criminal and civil actions open to a person who has been unlawfully dispossessed of those goods. The acquirer of the bill of lading shall acquire all the transferor’s rights and actions over the goods, with the exception of agreements on jurisdiction and arbitration, which shall require the consent of the acquirer in accordance with Chapter I of Title IX.’
8. Article 468 of the LNM, entitled ‘Clauses on jurisdiction and arbitration’, states:
‘Without prejudice to the provisions of the international agreements applicable in Spain and to the rules of [EU] law, clauses which provide for submission to a foreign jurisdiction or to arbitration abroad, contained in contracts for the use of a ship or in ancillary shipping contracts, shall be void and deemed not to exist if those clauses have not been individually and separately negotiated.
In particular, the insertion of a jurisdiction or arbitration clause in the printed terms and conditions of any of the contracts referred to in the preceding paragraph shall not in itself constitute evidence of compliance with the requirements laid down therein.’
The facts of the main proceedings and the questions referred for a preliminary ruling
Case C‑345/22
9. Maersk Line Perú S.A.C., (4) as carrier, and Aguafrost Perú, as shipper, concluded a contract for the carriage of goods by sea on ‘cost and freight’ terms, as evidenced by a bill of lading issued on 9 April 2018. That bill of lading contained, on the reverse, a jurisdiction clause in the following terms: ‘In all other cases, this bill of lading shall be governed and interpreted in accordance with English law and any disputes arising therefrom shall be submitted to the High Court of Justice [(England & Wales) (United Kingdom)] of London [(United Kingdom)], the jurisdiction of the courts of another country being excluded. Furthermore, and at the discretion of the carrier, the carrier may bring proceedings against the trader before a competent court of the place where the trader carries on his or her activity’. Oversea Atlantic Fish SL (‘Oversea’), a Spanish provider of fish and seafood, acquired the goods transported and thereby became a third-party holder of that bill of lading.
10. The goods arrived damaged at the port of destination. Allianz, as the insurance company subrogated to Oversea’s rights, brought an action against Maersk before the Juzgado de lo Mercantil no 3 de Pontevedra (Commercial Court No 3, Pontevedra, Spain) seeking EUR 67 449.71 in damages. (5)
11. Relying on the aforecited jurisdiction clause, Maersk argued that the Spanish courts had no jurisdiction. By order of 26 May 2020, the Juzgado de lo Mercantil no 3 de Pontevedra (Commercial Court No 3, Pontevedra) rejected that plea. Maersk brought an internal appeal against that order before that court. That appeal was dismissed by order of 2 December 2020.
12. By judgment of 7 July 2021, the Juzgado de lo Mercantil no 3 de Pontevedra (Commercial Court No 3, Pontevedra) upheld the substance of Allianz’s claim. Maersk brought an appeal against that judgment before the referring court, limited to a challenge of the jurisdiction of the Spanish courts. It argued that since Article 251 of the LNM is contrary to EU law, the referring court is required to apply Article 25 of the Brussels Ia Regulation. The jurisdiction clause is accordingly enforceable as against the third-party holder of the bill of lading.
13. The referring court is uncertain whether a jurisdiction clause such as that at issue in the main proceedings, to which the initial parties to the contract of carriage had agreed, is enforceable against a third-party holder of a bill of lading that neither expressly, nor individually, nor separately, consented to that clause.
14. The referring court observes that ‘jurisdiction clause’ is an independent concept of EU law. The international maritime transport sector has frequent recourse to jurisdiction clauses, such that, in accordance with Article 25(1)(c) of the Brussels Ia Regulation, the contracting parties must have been aware of their existence. Given that state of affairs, the judgment in Castelletti (6) supports the existence of a presumption that a person against whom such a clause is enforced had consented to it. The referring court also states that jurisdiction clauses are autonomous and severable by nature. The substantive law governing such clauses may thus be subject to a separate legal regime from that which governs the rest of the contract. A jurisdiction clause can thus be valid even where the contract itself is considered void.
15. The referring court explains that, in the case of bills of lading that include a jurisdiction clause which a third party acquires, Article 251 of the LNM refers to Article 468 thereof, which latter provides that jurisdiction clauses are void where they have not been individually and separately negotiated. (7) The referring court recalls the principle that the Court laid down in its judgment in Russ (8) and reiterated in its judgment in Coreck (9) that ‘in so far as the jurisdiction clause incorporated in a bill of lading is valid under Article 17 of the [Brussels] Convention as between the shipper and the carrier, it can be pleaded against the third party holding the bill of lading so long as, under the relevant national law, the holder of the bill of lading succeeds to the shipper’s rights and obligations’. Mention of the ‘relevant national law’ in that quotation can be understood as a reference to Article 251 of the LNM. Since it would thus have been necessary for the parties to negotiate the jurisdiction clause individually and separately, the transfer of rights under the bill of lading would have been incomplete. The referring court thus inquires whether Article 251 of the LNM is at odds with the aforementioned principle.
16. The referring court also submits that the national law under which the validity of the jurisdiction clause might be determined may be that of the State upon which that clause confers jurisdiction, namely the United Kingdom. In support of that position, the referring court refers to Article 25(1) of the Brussels Ia Regulation and the Court’s judgments in Benincasa (10) and DelayFix, (11) to the effect that the substantive validity of a jurisdiction clause is to be assessed in accordance with the legislation of the Member State the courts of which that clause designates.
17. Assuming that Article 251 of the LNM applies and that it is necessary to examine whether the third-party holder of the bill of lading consented to the jurisdiction clause individually and separately, the referring court raises the question of the form in which that consent might be given. It is of the view that that issue is governed by EU law and observes that where the requirements of Article 25(1) of the Brussels Ia Regulation are met, a test of presumed consent applies.
18. Finally, the referring court questions the compatibility of Article 251 of the LNM with the Court’s case-law in so far as that provision establishes that whilst one law governs the delivery of a bill of lading, a different law applies to the jurisdiction clause contained in that bill of lading. (12)
19. The Audiencia Provincial de Pontevedra (Provincial Court, Pontevedra) accordingly decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Does the provision in Article 25 of [the Brussels Ia Regulation] which establishes that the automatic nullity of the agreement conferring jurisdiction must be examined in accordance with the law of the Member State on which the parties have conferred jurisdiction also apply – in a situation such as that in the main proceedings – to the question of the validity of the application of the clause to a third party who is not a party to the contract containing the clause in question?
(2) Where the bill of lading is delivered to a third-party consignee of the goods who was not involved in the conclusion of the contract between the shipper and the maritime carrier, is a rule such as that in Article 251 of the [LNM], which requires that, in order to be enforceable against that third party, the jurisdiction clause must have been negotiated “individually and separately” with that party, compatible with Article 25 of [the Brussels Ia Regulation] and with the case-law of the … Court of Justice interpreting that article?
(3) Is it possible under EU law for Member States’ legislation to establish additional validity requirements in order for jurisdiction clauses included in bills of lading to be enforceable against third parties?
(4) Does a rule such as that in Article 251 of the [LNM] – which establishes that the subrogation of the third-party holder is only partial, and does not apply to prorogation of jurisdiction clauses – entail the introduction of an additional requirement for the validity of such clauses, contrary to Article 25 of [the Brussels Ia Regulation]?’
Case C‑346/22
20. MACS, as carrier, and Tunacor Fisheries Ltd, as shipper, concluded a contract for the carriage of goods by sea on ‘cost and freight’ terms, as evidenced by a bill of lading issued on 13 April 2019. The following jurisdiction clause appeared on the reverse of the bill of lading: ‘This bill of lading shall be governed in accordance with English law and any disputes arising therefrom shall be submitted to the High Court of Justice [(England & Wales)] of London’. The Spanish company Fortitude Shipping SL (‘Fortitude’) acquired the goods in question and thereby became a third-party holder of that bill of lading.
21. The goods arrived damaged at the port of destination. Mapfre, as the insurance company subrogated to Fortitude’s rights, brought an action against MACS before the Juzgado de lo Mercantil no 3 de Pontevedra (Commercial Court No 3, Pontevedra) seeking EUR 80 187.90 in damages. (13)
22. Relying on the aforecited jurisdiction clause, MACS argued that the Spanish courts had no jurisdiction. By order of 3 May 2020, the Juzgado de lo Mercantil no 3 de Pontevedra (Commercial Court No 3, Pontevedra) declined jurisdiction. Mapfre brought an appeal against that order before the referring court. Referring to Article 251 of the LNM, it argued that the jurisdiction clause was unenforceable as against Fortitude since the latter had neither been a party to the contract for the carriage of goods nor played any part in its performance. MACS submitted that since Article 251 of the LNM is contrary to EU law, the referring court must apply Article 25 of the Brussels Ia Regulation, thereby rendering the jurisdiction clause enforceable as against the third-party holder of the bill of lading.
23. Entertaining the same doubts as those that it raised in Case C‑345/22, the referring court decided to stay the proceedings and to refer essentially the same questions as in that case to the Court for a preliminary ruling.
Case C‑347/22
24. Maersk, as carrier, and Aguafrost Perú, as shipper, concluded a contract for the carriage of goods by sea on ‘cost and freight’ terms, as evidenced by a bill of lading issued on 2 August 2018. The bill of lading contained, on the reverse, a jurisdiction clause in identical terms to that reproduced in point 9 of the present Opinion. Oversea acquired the goods in question and thereby became a third-party holder of that bill of lading.
25. The goods arrived damaged at the port of destination. Allianz, as the insurance company subrogated to Oversea’s rights, brought an action against Maersk before the Juzgado de lo Mercantil no 3 de Pontevedra (Commercial Court No 3, Pontevedra) seeking EUR 106 093.65 in damages. (14)
26. Relying on the jurisdiction clause, Maersk argued that the Spanish courts had no jurisdiction. By order of 20 October 2020, the Juzgado de lo Mercantil no 3 de Pontevedra (Commercial Court No 3, Pontevedra) rejected that plea.
27. By judgment of 9 July 2021, the Juzgado de lo Mercantil no 3 de Pontevedra (Commercial Court No 3, Pontevedra) upheld the substance of Allianz’s claim. Maersk brought an appeal against that judgment before the referring court, claiming that the Spanish courts have no jurisdiction. Since Article 251 of the LNM is contrary to EU law, the referring court must apply Article 25 of the Brussels Ia Regulation, thereby rendering the jurisdiction clause enforceable as against the third-party holder of the bill of lading.
28. Entertaining the same doubts as those that it raised in Case C‑345/22, the referring court decided to stay the proceedings and to refer essentially the same questions as in that case to the Court for a preliminary ruling.
Procedure before the Court
29. By decision of 15 July 2022, the President of the Court joined Cases C‑345/22, C‑346/22 and C‑347/22 for the purposes of the written and oral parts of the procedure and of the judgment.
30. The parties to the main proceedings, the Spanish Government and the European Commission submitted written observations.
Legal assessment
Preliminary observation
31. The Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (15) (‘the Withdrawal Agreement’) was adopted on 17 October 2019 and entered into force on 1 February 2020. In accordance with Article 67(1)(a) of the Withdrawal Agreement, that article being entitled ‘Jurisdiction, recognition and enforcement of judicial decisions, and related cooperation between central authorities’, the provisions on jurisdiction in the Brussels Ia Regulation apply, in both the United Kingdom and in the Member States, in situations that involve the United Kingdom, to legal proceedings instituted before the end of the transition period laid down by Article 126 of the Withdrawal Agreement.
32. The present cases involve clauses that purport to confer jurisdiction on the courts of the United Kingdom. The orders for reference state that the judicial actions in the main proceedings were brought prior to 31 December 2020, the expiry date of the transition period contained in Article 126 of the Withdrawal Agreement. As the Spanish Government and the Commission rightly observe, it is necessary to interpret the Brussels Ia Regulation in order to resolve the disputes that are the subject matter of the orders for reference.
The first question
33. By its first question, the referring court seeks to ascertain whether the rule in Article 25(1) of the Brussels Ia Regulation, whereby the substantive validity of a jurisdiction clause is to be assessed in accordance with the law of the Member State of the court or courts designated in that clause, applies to the enforcement of a jurisdiction clause in a bill of lading against a third-party holder of that bill.
34. Article 25 of the Brussels Ia Regulation governs agreements by which the parties to a contract confer jurisdiction upon a court or the courts of a Member State to adjudicate on any disputes, present or future, as may arise between them. (16) The concept of ‘jurisdiction clause’, an independent concept of EU law, is to be interpreted so as to give full effect to the principle of freedom of choice on which Article 25(1) of the Brussels Ia Regulation is based. (17)
35. A comparison with the corresponding provisions of the Brussels Convention and the Brussels I Regulation discloses the changes Article 25 of the Brussels Ia Regulation made as regards jurisdiction clauses. First, it abandoned the requirement that at least one of the parties be domiciled in a Member State. (18) Second, Article 25(1) of the Brussels Ia Regulation contains a new uniform conflict-of-laws rule whereby the substantive validity of a jurisdiction clause is to be assessed in accordance with the legislation of the Member State of the courts which that clause designates, which includes, as recital 20 of that regulation states, ‘the conflict-of-laws rules of that Member State’. (19) I observe that this new rule applies where the issue of substantive validity is raised before both the court the parties designated in the jurisdiction clause and any other court of a Member State seised in disregard of that clause. (20) Third, Article 25(5) of the Brussels Ia Regulation provides for the severability of jurisdiction clauses from other contractual terms. (21)
36. Neither Article 25 of the Brussels Ia Regulation, nor any other of its provisions, expressly regulate the effects of jurisdiction clauses on third parties, in particular persons other than the parties to the initial contract to which the jurisdiction clause relates and who subsequently become parties to that contract by virtue of an assignment or other agreement. (22) According to the Court, a jurisdiction clause incorporated in a contract may, in principle, have effects upon relations between the original parties to the contract only. (23) For a third party to seek to rely on such a clause, it is, in principle, necessary for it to have consented thereto. (24) This approach is consonant with the Court’s earlier case-law on Article 17 of the Brussels Convention and on Article 23(1) of the Brussels I Regulation. (25)
37. Article 25(1) of the Brussels Ia Regulation applies to cases where the parties have ‘agreed’ on a court. As is apparent from recital 15 of that regulation, that consensus between the parties justifies the primacy afforded, in the name of the principle of the freedom of choice, to their choice of a court. (26) The Court accordingly held that Article 25(1) of the Brussels Ia Regulation imposes on the court before which the matter is brought the duty of examining, in limine litis, whether the jurisdiction clause was in fact the subject of consensus between the parties, the existence of which must be clearly and precisely demonstrated, the requirements as to form imposed by that provision serving the purpose of establishing the existence of consensus between those parties. (27)
38. In several judgments on the interpretation of Article 17 of the Brussels Convention delivered in the context of disputes over contracts for maritime transport services, the Court has nevertheless acknowledged that a jurisdiction clause incorporated in a bill of lading may be relied on against a third party to the contract. Such reliance may be had where that clause is adjudged valid as between the carrier and the shipper (28) and that, by virtue of the national law applicable, the third party succeeds to the shipper’s rights and obligations upon its acquisition of the bill of lading. (29) According to the Court, in those circumstances there is no need to ascertain whether the third-party holder of the bill of lading had accepted the jurisdiction clause in the initial contract. The acquisition of the bill of lading cannot have the effect of conferring more rights on the third party than those the shipper enjoyed. The third party is thereby vested with all of the rights in the bill of lading and is simultaneously subject to all of the obligations contained therein, including the jurisdiction clause. (30) Where the national law applicable does not provide for such substitution, a court seised must ascertain whether the third party had in fact accepted the jurisdiction clause. (31)
39. In the judgment in Refcomp, which involved the interpretation of Article 23(1) of the Brussels I Regulation, the Court stated that the scope of the aforecited case-law must be assessed in the light of the very specific nature of bills of lading, which it described as ‘instrument[s] of international commerce intended to govern a relationship involving at least three persons, namely the maritime carrier, the consigner of the goods or shipper, and the recipient of the goods’ and ‘negotiable instrument[s] which [allow] the owner to transfer the goods, en route, to a purchaser who becomes[,] as bearer of the bill of lading, the consignee of the goods and the holder of all the rights and obligations of the shipper in relation to the carrier’. (32) It is in the light of that relationship of substitution between the shipper and the third-party holder of the bill of lading that a third-party holder is bound by a jurisdiction clause contained in that bill. The Court considered that case-law inapplicable in the circumstances of that case, since they concerned a jurisdiction clause that the manufacturer and the initial buyer of the goods had agreed as part of a chain of contracts transferring ownership of goods. (33)
40. The Court subsequently adopted a less restrictive approach and applied the case-law that it had developed in the context of bills of lading to other contracts.
41. The judgment in CDC Hydrogen Peroxide involved the interpretation of, inter alia, Article 23 of the Brussels I Regulation. A Belgian company incorporated in order to pursue damages claims by undertakings affected by a cartel, brought proceedings in a German court for disclosure and damages against several companies registered in various Member States that had participated in an infringement of Article 101 TFEU. Referring to the judgment in Coreck, the Court held that ‘only where a party not privy to the original contract had succeeded to an original contracting party’s rights and obligations in accordance with national substantive law as established by the application of the rules of private international law of the court seised of the matter could that third party nevertheless be bound by a jurisdiction clause to which it had not agreed’. (34)
42. The Court followed the same approach in its judgment in Profit Investment SIM, (35) where it ruled that a jurisdiction clause in a bond prospectus is enforceable against a third party that acquired those bonds from a financial intermediary where it is established, inter alia, that ‘the third party, by acquiring those bonds on the secondary market, succeeded to the financial intermediary’s rights and obligations attached to those bonds under the applicable national law’.
43. In the judgment in DelayFix, the issue arose as to whether Ryanair could rely, against DelayFix, a company active in the recovery of air passengers’ claims, upon a jurisdiction clause in a contract of carriage between itself and a passenger, who had assigned his claim to DelayFix, where that company had not agreed to the jurisdiction clause. In paragraph 47 of that judgment, the Court held that reliance upon that jurisdiction clause was possible only if DelayFix – the third party – had succeeded to the rights and obligations of an original contracting party – here the passenger – ‘in accordance with national substantive law’.
44. It is apparent from the Court’s case-law that, as a matter of EU law, it is possible to enforce a jurisdiction clause agreed between a carrier and a shipper in a bill of lading against a third-party holder of that bill where the third party consented to that clause or where it succeeded to the shipper’s rights and obligations. (36) Any question as to whether the third party succeeds to the shipper’s rights and obligations by acquiring the bill of lading is to be resolved by reference to national law. As Allianz, Mapfre and the Spanish Government rightly submit, that national law is the national substantive law as established by applying the rules of private international law of the court seised of the dispute. (37)
45. Paragraph 47 of the judgment in DelayFix appears to adopt the same approach when, citing paragraph 65 of the judgment in CDC Hydrogen Peroxide, which in turn refers to paragraph 30 of the judgment in Coreck, it refers to ‘national substantive law’. When it returns to that issue in paragraph 63 and in the operative part of that judgment, the Court appears to change stance, holding that the question as to whether the collection agency is the successor to all the initial contracting party’s rights and obligations is to be determined in the light of ‘the legislation of the Member State whose courts are designated in [the jurisdiction] clause’.
46. That approach presents the following three difficulties, by reason of which I do not commend it to the Court. (38)
47. First, point 45 of the present Opinion demonstrates that the reasoning in the judgment in DelayFix is afflicted by inconsistency, if not by an outright contradiction. It is not possible to purport to follow the Court’s established case-law, as summarised in point 44 of the present Opinion, which holds that the law governing the question as to whether the third party succeeds to the shipper’s rights and obligations by acquiring the bill of lading is the national substantive law as established by applying the rules of private international law of the court seised of the matter, only to conclude that the law of the Member State designated by the jurisdiction clause applies instead.
48. Second, I am of the view that the approach taken in paragraph 63 and in the operative part of the judgment in DelayFix does not merely clarify or nuance the Court’s judgments in Coreck and in CDC Hydrogen Peroxide. (39) Unless it is a mere clerical error – a possibility that I do not rule out, as I explain in point 50 of the present Opinion – that approach departs manifestly from those earlier judgments. Whilst the Court is not necessarily bound by its previous case-law and can certainly adapt it in order to take account, for example, of changes in the applicable legal rules or the presence of new factors, it is surprising that the judgment in DelayFix contains no explanation for its change of position with regard to the national law applicable.
49. Third, the approach contained in paragraph 63 and in the operative part of the judgment in DelayFix might be interpreted so that the conflict-of-laws rule that Article 25(1) of the Brussels Ia Regulation introduced relating to the substantive validity of the jurisdiction clause governs the transfer to a third party of the rights and obligations of the party to the initial contract. Points 54 to 56 of the present Opinion explain why I consider that interpretation not to be open to the Court.
50. In the light of the reasoning adopted in paragraphs 48 to 62 of the judgment in DelayFix, I do not rule out that what the Court intended to do was to refer to the legislation of the State of the courts designated in the jurisdiction clause when examining the validity of that clause as between the initial parties to the contract, namely the airline and the passenger. The reference to that legislation in paragraph 63 and in the operative part of that judgment would, in that case, be no more than a slip of the pen.
51. In my view, three reasons explain why, notwithstanding the changes Article 25(1) of the Brussels Ia Regulation introduced, the principles established in the case-law interpreting the first paragraph of Article 17 of the Brussels Convention and Article 23(1) of the Brussels I Regulation, to which points 38, 39 and 41 to 44 of the present Opinion refer, continue to apply.
52. I first observe that the Court has held that, in so far as Article 25(1) of the Brussels Ia Regulation replaced, in almost identical terms, Article 23(1) of the Brussels I Regulation, its interpretation of the second of those provisions applies equally to the first. (40)
53. Second, I consider that the removal of the requirement that at least one of the parties be domiciled in a Member State is aimed primarily at reinforcing parties’ freedom to choose the court or courts having jurisdiction and has no bearing on the application to, or the effect of jurisdiction clauses upon, third parties.
54. Finally (which seems to be the central issue in the first question referred), I agree with the Spanish Government and the Commission that the new conflict-of-laws rule providing that the substantial validity of the jurisdiction clause is to be determined by reference to the law of the Member State of the court or courts designated in that clause is not intended to govern the effects of jurisdiction clauses upon third parties, notably whether a party not privy to the original contract succeeds to the original contracting party’s rights and obligations.
55. In that regard, I share what appears to be the unanimous view of academic commentators that the concept of ‘substantive validity’ in Article 25(1) of the Brussels Ia Regulation encompasses the substantive validity of a jurisdiction clause when challenged on the ground of its invalidity, including error, misrepresentation, violence, fraud, or the absence of authority or capacity. (41) In their Explanatory Report on the Hague Convention of 30 June 2005 on Choice of Court Agreements, Professors Hartley and Dogauchi appear to agree where they comment on the first paragraph of Article 5 of that convention as follows: ‘The “null and void” provision applies only to substantive (not formal) grounds of invalidity’ and ‘is intended to refer primarily to generally recognised grounds like fraud, mistake, misrepresentation, duress and lack of capacity’. (42)
56. It follows that the effects of jurisdiction clauses upon third parties do not come within the concept of ‘substantive validity’ in Article 25(1) of the Brussels Ia Regulation. (43) The validity of a jurisdiction clause and its applicability or enforceability against third parties are separate and distinct issues.
57. In the light of the foregoing, I propose that the Court answer the first question to the effect that Article 25(1) of the Brussels Ia Regulation must be interpreted as meaning that a jurisdiction clause agreed between a carrier and a shipper which is incorporated in a bill of lading is enforceable against a third-party holder of the bill of lading if, on acquiring that bill, it succeeded to the shipper’s rights and obligations. It is for the court seised of the matter to answer that question in accordance with national substantive law as established by applying its rules of private international law. The rule in that provision that the substantive validity of a jurisdiction clause is to be assessed in accordance with the law of the Member State of the court or courts designated in that clause does not govern the enforceability of a jurisdiction clause incorporated in a bill of lading against a third-party holder of that bill.
The second, third and fourth questions
58. By its second to fourth questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 25(1) of the Brussels Ia Regulation precludes national legislation under which a third party to a contract for the carriage of goods by sea concluded between a carrier and a shipper that acquires the bill of lading evidencing that contract is subrogated to all of the shipper’s rights and obligations, with the exception of the jurisdiction clause incorporated therein, which is enforceable against it only where it negotiated that clause individually and separately.
59. It is apparent from the consideration of the first question referred that, under what appears to be the correct interpretation of Article 25(1) of the Brussels Ia Regulation, a jurisdiction clause incorporated in a bill of lading may be relied on against a third-party holder of that bill if that clause has been adjudged valid as between the carrier and the shipper and that, under the applicable national law, on acquiring the bill of lading, the third party succeeded to the shipper’s rights and obligations. In that case, there is no need to ascertain the third-party holder’s consent to the jurisdiction clause.
60. My understanding of the preliminary references is that the referring court assumes that Spanish law applies to that issue, namely Article 251 of the LNM, read in conjunction with Article 468 thereof. (44) Those two provisions, read together, appear to show that a third party that acquires a bill of lading succeeds to all of the shipper’s rights and actions over the goods, with the exception of those arising from a jurisdiction clause. That clause is valid only if the third-party holder of the bill of lading negotiated it individually and separately.
61. Contrary to the position adopted by Allianz, Mapfre and the Spanish Government, I share the Commission’s view that that national legislation has the effect of circumventing Article 25(1) of the Brussels Ia Regulation, as interpreted by the case-law of the Court, and is therefore contrary thereto.
62. I observe, however, that Article 468 of the LNM states that it applies ‘without prejudice … to the rules of [EU] law’. (45) In the light of that reservation, in its observations the Spanish Government interprets that provision, regarded ‘in isolation’, as applicable only to jurisdiction clauses not covered by Article 25 of the Brussels Ia Regulation, specifically those that confer jurisdiction on the courts of third countries. Similarly, the referring court submits that the rule in Article 468 of the LNM does not apply if the jurisdiction clause confers jurisdiction on the courts of a Member State.
63. In that regard, I would point out that the referring court is under an obligation to interpret national legislation in conformity with EU law. Consequently, if the reservation in Article 468 of the LNM were to enable the referring court to interpret the national legislation at issue in conformity with Article 25(1) of the Brussels Ia Regulation, as interpreted by the Court’s case-law, without that interpretation being contra legem to Spanish law, which it is a matter for the referring court to determine, that solution falls to be adopted.
64. I therefore propose that the Court answer the second, third and fourth questions to the effect that Article 25(1) of the Brussels Ia Regulation is to be interpreted as precluding national legislation under which a third party to a contract for the carriage of goods by sea concluded between a carrier and a shipper that acquires the bill of lading evidencing that contract is subrogated to all of the shipper’s rights and obligations, with the exception of the jurisdiction clause incorporated therein, which is enforceable against it only where it negotiated that clause individually and separately.
Conclusion
65. In the light of the foregoing considerations, I propose that the Court answer the questions referred by the Audiencia Provincial de Pontevedra (Provincial Court, Pontevedra, Spain) as follows:
(1) 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
must be interpreted as meaning that a jurisdiction clause agreed between a carrier and a shipper which is incorporated in a bill of lading is enforceable against a third-party holder of the bill of lading if, on acquiring that bill, it succeeded to the shipper’s rights and obligations. It is for the court seised of the matter to answer that question in accordance with national substantive law as established by applying its rules of private international law. The rule in that provision that the substantive validity of a jurisdiction clause is to be assessed in accordance with the law of the Member State of the court or courts designated in that clause does not govern the enforceability of a jurisdiction clause incorporated in a bill of lading against a third-party holder of that bill.
(2) Article 25(1) of Regulation No 1215/2012
must be interpreted as precluding national legislation under which a third party to a contract for the carriage of goods by sea concluded between a carrier and a shipper that acquires the bill of lading evidencing that contract is subrogated to all the shipper’s rights and obligations, with the exception of the jurisdiction clause incorporated therein, which is enforceable against it only where it negotiated that clause individually and separately.