Maersk (Judicial cooperation in civil and commercial matters - Contract for the carriage of goods evidenced by a bill of lading - Enforceability against the third-party holder of the bill of lading - Judgment) [2024] EUECJ C-345/22 (25 April 2024)

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Maersk (Judicial cooperation in civil and commercial matters - Contract for the carriage of goods evidenced by a bill of lading - Enforceability against the third-party holder of the bill of lading - Judgment) [2024] EUECJ C-345/22 (25 April 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/C34522.html Cite as: ECLI:EU:C:2024:349, EU:C:2024:349, [2024] EUECJ C-345/22

(Requests 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 evidenced by a bill of lading – Jurisdiction clause incorporated in that 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)

THREE REQUESTS for a preliminary ruling under Article 267 TFEU from the Audiencia Provincial de Pontevedra (Provincial Court, Pontevedra, Spain), made by decisions of 16 May 2022, received at the Court on 25 May 2022, in the proceedings

composed of P.G. Xuereb, acting as President of the Chamber, A. Kumin (Rapporteur) and I. Ziemele, Judges,

– Maersk A/S and MACS Maritime Carrier Shipping GmbH & Co., by C. Lopera Merino, abogada, G. Quintás Rodriguez and C. Zubeldía Blein, procuradoras,

– Mapfre España Compañía de Seguros y Reaseguros SA, by J. Tojeiro Sierto, abogado,

– the European Commission, by S. Noë and C. Urraca Caviedes, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 16 November 2023,

1 These requests for a preliminary ruling concern 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 (OJ 2012 L 351, p. 1; ‘the Brussels Ia Regulation’).

2 The requests have been made in three sets of proceedings between, in Cases C‑345/22 and C‑347/22, the Danish transport company Maersk A/S and the Spanish insurance company Allianz Seguros y Reaseguros SA (‘Allianz’), and, in Case C‑346/22, the Spanish insurance company Mapfre España Compañía de Seguros y Reaseguros SA (‘Mapfre’) and the German transport company MACS Maritime Carrier Shipping GmbH & Co. (‘MACS’) concerning (i) the compensation claimed before a Spanish court by those two insurance companies, successors in law to third-party purchasers of goods which were transported by sea by those transport companies, in respect of the material damage allegedly sustained by those goods during transportation, and (ii) the plea raised by those transport companies alleging that the Spanish courts lack jurisdiction on the basis of a clause conferring jurisdiction on a court of the United Kingdom to settle disputes arising from the contracts of carriage at issue in the main proceedings.

3 By Decision (EU) 2020/135 of 30 January 2020 on the conclusion of 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 (OJ 2020 L 29, p. 1), the Council of the European Union, on behalf of the European Union and the European Atomic Energy Community (EAEC), approved that agreement (OJ 2020 L 29, p. 7; ‘the Withdrawal Agreement’). The Withdrawal Agreement was attached to that decision and entered into force on 1 February 2020.

4 Article 67 of the Withdrawal Agreement, headed ‘Jurisdiction, recognition and enforcement of judicial decisions, and related cooperation between central authorities’, provides in paragraph 1:

‘In the United Kingdom, as well as in the Member States in situations involving the United Kingdom, in respect of legal proceedings instituted before the end of the transition period and in respect of proceedings or actions that are related to such legal proceedings pursuant to Articles 29, 30 and 31 of [the Brussels Ia Regulation] …, the following acts or provisions shall apply:

‘There shall be a transition or implementation period, which shall start on the date of entry into force of this Agreement and end on 31 December 2020.’

6 Article 127 of the Withdrawal Agreement, headed ‘Scope of the transition’, is worded as follows:

‘1. Unless otherwise provided in this Agreement, Union law shall be applicable to and in the United Kingdom during the transition period.

3. During the transition period, the Union law applicable pursuant to paragraph 1 shall produce in respect of and in the United Kingdom the same legal effects as those which it produces within the Union and its Member States, and shall be interpreted and applied in accordance with the same methods and general principles as those applicable within the Union.

7 The first paragraph of Article 17 of the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, signed at Brussels on 27 September 1968 (OJ 1978 L 304, p. 36), as amended by the Convention of Accession of 9 October 1978 of the Kingdom of Denmark, of Ireland and of the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1, and – amended text – p. 77), by the Convention of 25 October 1982 on the accession of the Hellenic Republic (OJ 1982 L 388, p. 1) and by the Convention of 26 May 1989 on the accession of the Kingdom of Spain and the Portuguese Republic (OJ 1989 L 285, p. 1) (‘the Brussels Convention’), provided:

‘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:

(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.

8 Article 23(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 (OJ 2001 L 12, p. 1; ‘the Brussels I Regulation’) provided:

‘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:

(b) in a form which accords with practices which the parties have established between themselves; or

9 Chapter II of the Brussels Ia Regulation, headed ‘Jurisdiction’, includes Section 7, headed ‘Prorogation of jurisdiction’. Under Article 25 of that regulation, which appears in Section 7:

‘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:

(b) in a form which accords with practices which the parties have established between themselves; or

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.’

10 Section XI of the preamble to Ley 14/2014 de Navegación Marítima (Shipping Law 14/2014) of 24 July 2014 (BOE No 180 of 25 July 2014, p. 59193; ‘the LNM’) states:

‘… [Chapter I of Title IX] 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. …’

‘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.’

12 The first paragraph of Article 468 of the LNM, entitled ‘Clauses on jurisdiction and arbitration’, which appears in Chapter I of Title IX of that law, provides:

‘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.

The disputes in the main proceedings and the questions referred for a preliminary ruling

13 Maersk Line Perú SAC, a Peruvian subsidiary of Maersk, as carrier, concluded a contract for the carriage of goods by sea on CFR (cost and freight) terms with Aquafrost Perú (‘Aquafrost’), as shipper, a contract which was evidenced by a bill of lading issued on 9 April 2018. The reverse side of that bill of lading contained a jurisdiction clause worded as follows:

‘… 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, 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.’

14 Oversea Atlantic Fish SL (‘Oversea’) acquired the goods in question and thereby became a third-party holder of the bill of lading. Since those goods arrived at the port of destination in a damaged state, Allianz, which had been subrogated to Oversea’s rights, brought an action before the Juzgado de lo Mercantil no 3 de Pontevedra (Commercial Court No 3, Pontevedra, Spain) and claimed damages from Maersk in the amount of EUR 67 449.71. That action was brought before the end of the transition period provided for in Article 126 of the Withdrawal Agreement.

15 On the basis of the jurisdiction clause referred to in paragraph 13 above, Maersk argued that the Spanish courts did not have jurisdiction.

16 By order of 26 May 2020, the Juzgado de lo Mercantil no 3 de Pontevedra (Commercial Court No 3, Pontevedra) rejected that plea alleging lack of jurisdiction. Maersk brought an internal appeal against that order before that court, which was dismissed by order of 2 December 2020. Furthermore, by judgment of 7 July 2021, that court upheld Allianz’s action on the substance.

17 Maersk brought an appeal against that judgment before the Audiencia Provincial de Pontevedra (Provincial Court, Pontevedra, Spain), which is the referring court, arguing that the Spanish courts do not have jurisdiction because the jurisdiction clause is enforceable against the third-party holder of the bill of lading. Maersk submits that Article 25 of the Brussels Ia Regulation should be applied, not Article 251 of the LNM, which is contrary to EU law.

18 The referring court is uncertain whether that jurisdiction clause is enforceable against the third-party holder of the bill of lading despite the fact that that third party did not expressly, individually and separately consent to it upon acquiring the bill of lading. It states that it follows from the judgment of 18 November 2020, DelayFix (C‑519/19, EU:C:2020:933), that the Brussels Ia Regulation strengthens the contracting parties’ freedom to choose which court has jurisdiction as compared to the previous situation under the Brussels I Regulation.

19 The referring court also considers that it follows in particular from paragraph 27 of the judgment of 16 March 1999, Castelletti (C‑159/97, EU:C:1999:142), that, in the international maritime transport sector, there is a presumption that contracting parties are aware of and consent to jurisdiction clauses in contracts of carriage, since such clauses are commonplace in that sector.

20 In addition, the referring court draws attention to the autonomous nature and severability of jurisdiction clauses, with the result that they may be subject, as regards the applicable substantive law, to different legal rules than the rest of the contract of which they form part. Thus, a jurisdiction clause can be valid even if the contract itself is void.

21 In the specific case of bills of lading relating to the carriage of goods, which contain a jurisdiction clause and are subsequently acquired by a third party, Article 251 of the LNM refers to Article 468 thereof, which provides that such a clause is to be void if it has not been individually and separately negotiated by that third party.

22 The explanatory memorandum to the LNM justifies those provisions by the need to protect the interests of national recipients, who hold bills of lading in which the original parties incorporated a jurisdiction clause, and are in the weakest contractual position, particularly in the case of contracts of carriage by sea under a liner bill of lading. Obliging domestic undertakings, shippers and consignees of goods to pursue claims before foreign courts could, in practice, weaken their judicial protection.

23 The referring court submits that the application of Article 251 of the LNM in order to fill possible gaps in EU law would be problematic. Moreover, there is a contradiction between that provision and the case-law of the Court stemming, inter alia, from the judgment of 9 November 2000, Coreck (C‑387/98, EU:C:2000:606, paragraph 23). Since, under Spanish law, jurisdiction clauses and arbitration clauses are not binding on the parties unless they are the proven result of individual and separate negotiation, the assignment of rights arising from a bill of lading is not a full assignment.

24 However, the referring court raises the issue whether the national legislation at issue in the main proceedings might be inapplicable.

25 First, the referring court considers, on the basis of both Article 25(1) of the Brussels Ia Regulation and the case-law stemming from the judgments of 3 July 1997, Benincasa (C‑269/95, EU:C:1997:337), and of 18 November 2020, DelayFix (C‑519/19, EU:C:2020:933), that the validity of a jurisdiction clause must be examined in the light of the law of the State on which that clause confers jurisdiction, so that, here, English law should be applied and not Article 468 of the LNM. Secondly, even if Article 251 of the LNM were applicable to the dispute in the main proceedings, that court is of the view that the form which consent to a jurisdiction clause must take is governed by EU law rather than national law, in order to prevent each Member State from laying down different requirements in that regard. Thirdly, the referring court expresses doubts as to whether Article 251 of the LNM is consistent with the case-law stemming from the judgment of 9 November 2000, Coreck (C‑387/98, EU:C:2000:606), since, in accordance with that provision, the rights and obligations under a jurisdiction clause contained in a bill of lading are excluded from the rights and obligations transferred to the third-party holder of that bill of lading.

26 In those circumstances, the Audiencia Provincial de Pontevedra (Provincial Court, Pontevedra) 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]?’

27 MACS, as carrier, and Tunacor Fisheries Ltd, as shipper, concluded a contract for the carriage of goods by sea on CFR (cost and freight) terms, which was evidenced by a bill of lading issued on 13 April 2019. The reverse side of that bill of lading contained a jurisdiction clause worded as follows:

‘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.’

28 Fortitude Fishing SL (‘Fortitude’) acquired the goods in question and thereby became a third-party holder of the bill of lading. Since those goods arrived at the port of destination in a damaged state, Mapfre, which had been subrogated to Fortitude’s rights, brought an action before the Juzgado de lo Mercantil no 3 de Pontevedra (Commercial Court No 3, Pontevedra) claiming damages from MACS in the amount of EUR 80 187.90. That action was brought before the end of the transition period provided for in Article 126 of the Withdrawal Agreement.

29 On the basis of the jurisdiction clause referred to in paragraph 27 above, MACS argued that the Spanish courts did not have jurisdiction.

30 By order of 3 May 2021, the Juzgado de lo Mercantil no 3 de Pontevedra (Commercial Court No 3, Pontevedra) declined jurisdiction.

31 Mapfre brought an appeal against that decision before the Audiencia Provincial de Pontevedra (Provincial Court, Pontevedra), which is also the referring court in Case C‑346/22, arguing, first, that the Spanish courts had jurisdiction since Fortitude was neither a party to the contract of carriage between MACS and Tunacor Fisheries nor was it involved in that carriage operation and, secondly, that under Article 251 of the LNM, the jurisdiction clause could not be enforced against it.

32 MACS, on the other hand, argues that the Spanish courts do not have jurisdiction because the jurisdiction clause is enforceable against the third-party holder of the bill of lading. MACS submits that Article 25 of the Brussels Ia Regulation should be applied, not Article 251 of the LNM, which is contrary to EU law.

33 Entertaining the same doubts as those raised in Case C‑345/22, the referring court decided to stay the proceedings and to refer questions to the Court of Justice for a preliminary ruling which are, in essence, identical to those referred in that case.

34 Maersk Line Perú, as carrier, and Aquafrost, as shipper, concluded a contract for the carriage of goods by sea on CFR (cost and freight) terms, which was evidenced by a bill of lading issued on 2 August 2018. The reverse side of that bill of lading contained a jurisdiction clause worded in terms identical to those used in the jurisdiction clause at issue in Case C‑345/22.

35 Oversea acquired the goods in question and thereby became a third-party holder of the bill of lading. Since those goods arrived at the port of destination in a damaged state, Allianz, which had been subrogated to Oversea’s rights, brought an action before the Juzgado de lo Mercantil no 3 de Pontevedra (Commercial Court No 3, Pontevedra) claiming damages from Maersk in the amount of EUR 106 093.65. That action was brought before the end of the transition period provided for in Article 126 of the Withdrawal Agreement.

36 On the basis of the jurisdiction clause referred to in paragraph 34 above, Maersk argued that the Spanish courts did not have jurisdiction.

37 By order of 20 October 2020, the Juzgado de lo Mercantil no 3 de Pontevedra (Commercial Court No 3, Pontevedra) rejected that plea alleging lack of jurisdiction. Maersk did not bring an internal appeal against that decision. Furthermore, by judgment of 9 July 2021, that court upheld Allianz’s action on the substance.

38 Maersk brought an appeal against that decision before the Audiencia Provincial de Pontevedra (Provincial Court, Pontevedra), which is also the referring court in Case C‑347/22, arguing that the Spanish courts do not have jurisdiction because the jurisdiction clause is enforceable against the third-party holder of the bill of lading. Maersk submits that Article 25 of the Brussels Ia Regulation should be applied, not Article 251 of the LNM, which is contrary to EU law.

39 Entertaining the same doubts as those raised in Case C‑345/22, the referring court decided to stay the proceedings and to refer questions to the Court of Justice for a preliminary ruling which are, in essence, identical to those referred in that case.

40 By decision of the President of the Court of 15 July 2022, Cases C‑345/22, C‑346/22 and C‑347/22 were joined for the purposes of the written and oral parts of the procedure and the decision closing the proceedings.

41 As regards the question whether the scope of the Brussels Ia Regulation, the interpretation of which is requested by the referring court, covers a situation such as the one in the main proceedings, it should be observed, first, that the jurisdiction clauses at issue in those cases confer jurisdiction to hear disputes relating to the contracts for carriage by sea also at issue in those cases on a court of the United Kingdom, and, secondly, that the Withdrawal Agreement came into force on 1 February 2020.

42 That being so, under Article 67(1)(a) of the Withdrawal Agreement, the provisions on jurisdiction in the Brussels Ia Regulation apply, in the United Kingdom as well as in the Member States in situations involving the United Kingdom, in respect of legal proceedings instituted before the end of the transition period provided for in Article 126 of that agreement (judgment of 24 November 2022, Tilman, C‑358/21, EU:C:2022:923, paragraph 28).

43 In addition, under Article 127(1) and (3) of the Withdrawal Agreement, during that transition period, EU law is, first, to apply to the United Kingdom and, secondly, to be interpreted and applied in accordance with the same methods and general principles as those applicable within the European Union.

44 Consequently, since it is apparent from the orders for reference that Allianz and Mapfre brought their respective actions before 31 December 2020 and therefore before the end of that transition period, it must be stated, as the Spanish Government and the European Commission did in their written observations, that notwithstanding the United Kingdom’s withdrawal from the European Union, the Brussels Ia Regulation is applicable to the disputes in the main proceedings.

45 By its first question in each of the joined cases, the referring court asks, in essence, whether Article 25(1) of the Brussels Ia Regulation must be interpreted as meaning that the enforceability of a jurisdiction clause against the third-party holder of the bill of lading containing that clause is governed by the law of the Member State of the court or courts designated by that clause.

46 In accordance with the first sentence of Article 25(1) of the Brussels Ia Regulation, ‘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’.

47 Therefore, that provision does not specify whether a jurisdiction clause may be assigned, beyond the circle of the parties to a contract, to a third party, who is a party to a subsequent contract and successor, in whole or in part, to the rights and to the obligations of one of the parties to the initial contract (judgment of 18 November 2020, DelayFix, C‑519/19, EU:C:2020:933, paragraph 40 and the case-law cited).

48 Furthermore, although it is clear from Article 25(1) of the Brussels Ia Regulation that the substantive validity of a jurisdiction clause is to be assessed in the light of the law of the Member State of the court or courts designated by that clause, the fact remains that the enforceability of such a clause against a third party to the contract, such as a third-party holder of the bill of lading, is concerned not with the substantive validity of that clause, as the Advocate General observed in points 54 to 56 of his Opinion, but with its effects, the assessment of which necessarily comes after the assessment of its substantive validity, that latter assessment having to be carried out by reference to the relationship between the original parties to the contract.

49 Consequently, Article 25(1) of the Brussels Ia Regulation does not specify what the effects of a jurisdiction clause are vis-à-vis a third party or which law is the applicable national law in that regard.

50 That being so, it should be recalled that it follows from the case-law of the Court concerning the first paragraph of Article 17 of the Brussels Convention and Article 23(1) of the Brussels I Regulation that a jurisdiction clause incorporated in a bill of lading may be relied on against a third party to the contract if that clause has been adjudged valid between the shipper and the carrier and provided that, by virtue of the relevant national law, the third party, on acquiring the bill of lading, succeeded to the shipper’s rights and obligations. In such a case, there is no need for the court seised of the matter to ascertain whether that third party agreed to that clause (judgments of 19 June 1984, Russ, 71/83, EU:C:1984:217, paragraphs 24 and 25, and of 7 February 2013, Refcomp, C‑543/10, EU:C:2013:62, paragraph 34 and the case-law cited).

51 The Court has concluded from this, as regards the provisions of the Brussels Convention and the Brussels I Regulation, that only where the third-party holder of the bill of lading has 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 can a jurisdiction clause to which that third party has not agreed nevertheless be relied upon against it (judgments of 9 November 2000, Coreck, C‑387/98, EU:C:2000:606, paragraphs 24, 25 and 30, and of 21 May 2015, CDC Hydrogen Peroxide, C‑352/13, EU:C:2015:335, paragraph 65). Conversely, where the relevant national law does not provide for such a relationship of substitution, that court must ascertain whether that third party has actually accepted the jurisdiction clause (judgment of 7 February 2013, Refcomp, C‑543/10, EU:C:2013:62, paragraph 36 and the case-law cited).

52 Although it is true that the wording of Article 25(1) of the Brussels Ia Regulation differs in part from that of the first paragraph of Article 17 of the Brussels Convention and Article 23(1) of the Brussels I Regulation, it should nevertheless be observed, as the Advocate General did in points 51 to 54 of his Opinion and as is apparent, in essence, from the judgment of 24 November 2022, Tilman (C‑358/21, EU:C:2022:923, paragraph 34), that the case-law set out in paragraphs 50 and 51 above is capable of being applied to that provision of the Brussels Ia Regulation.

53 First, in so far as Article 25(1) of the Brussels Ia Regulation no longer contains the requirement that at least one of the parties be domiciled in a Member State, it must be observed that the removal of that requirement reinforces parties’ freedom to choose the court or courts having jurisdiction and has no bearing on the definition of the effects of a jurisdiction clause vis-à-vis a third party to the contract. Secondly, in so far as that provision now designates which law is the applicable national law for the purposes of assessing the substantive validity of such a clause, the view must be taken, in the light of paragraph 48 above, that that new conflict-of-laws rule does not, on the other hand, govern the enforceability of the clause concerned against such a third party.

54 Consequently, if, in the present case, the referring court were to find that Oversea and Fortitude, as third-party holders of bills of lading, are respectively subrogated to all of the rights and obligations of Aquafrost and Tunacor Fisheries, as shippers and therefore original parties to the contracts of carriage at issue in the main proceedings, that court would have to conclude therefrom, in accordance with Article 25(1) of the Brussels Ia Regulation, as interpreted by the case-law of the Court, that the jurisdiction clauses at issue in those cases are enforceable against those third parties. By contrast, that provision is not relevant to the examination of whether those third parties are subrogated to all of the rights and obligations of those shippers, since that subrogation is governed by national substantive law as established by applying the rules of private international law of the Member State of the referring court.

55 In the light of the foregoing considerations, the answer to the first question in each of the joined cases is that Article 25(1) of the Brussels Ia Regulation must be interpreted as meaning that the enforceability of a jurisdiction clause against the third-party holder of the bill of lading containing that clause is not governed by the law of the Member State of the court or courts designated by that clause. That clause is enforceable against that third party if, on acquiring that bill of lading, it is subrogated to all of the rights and obligations of one of the original parties to the contract, which must be assessed in accordance with national substantive law as established by applying the rules of private international law of the Member State of the court seised of the dispute.

56 By its second to fourth questions in each of the joined cases, which it is appropriate to examine together, the referring court seeks to ascertain, in essence, whether Article 25(1) of the Brussels Ia Regulation must be interpreted as precluding national legislation under which a third party to a contract for the carriage of goods concluded between a carrier and a shipper, who acquires the bill of lading evidencing that contract and thereby becomes a third-party holder of that bill of lading, is subrogated to all of the shipper’s rights and obligations, with the exception of those arising under a jurisdiction clause incorporated in the bill of lading, where that clause is enforceable against that third party only if the third party has negotiated it individually and separately.

57 In the light of paragraphs 50 to 52 and 55 above, Article 25(1) of the Brussels Ia Regulation must be interpreted as meaning that a jurisdiction clause incorporated in a bill of lading is enforceable against the third-party holder of that bill of lading if, first, that clause has been adjudged valid between the shipper and the carrier which concluded the contract of carriage evidenced by that bill of lading and, secondly, under the relevant national law as established by applying the rules of private international law of the Member State of the court seised of the dispute, that third party, on acquiring the bill of lading in question, is subrogated to all of the rights and obligations of one of those original parties to the contract.

58 In the present case, the referring court has not provided information capable of calling into question the validity of the jurisdiction clauses at issue in the main proceedings. Consequently, it will be for that court to ascertain whether, under the applicable national law, each of the third-party holders of bills of lading in those cases is subrogated to all of the rights and obligations of the shippers concerned. If they are, there is no need to ascertain whether each of those third parties actually accepted those clauses.

59 In that regard, as is apparent from the orders for reference, the referring court appears to take the view that Spanish law is the applicable national law. However, Article 251 of the LNM, read in conjunction with Article 468 thereof, provides, in essence, that the acquirer of the bill of lading acquires all of the transferor’s rights and actions over the goods, with the exception of jurisdiction clauses, which require the consent of the acquirer, and that those clauses are to be void and deemed not to exist if they have not been individually and separately negotiated.

60 Therefore, it must be stated, as did the Commission in its written observations and the Advocate General in point 61 of his Opinion, that such 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 that it is therefore contrary to that provision.

61 According to the information supplied by the referring court, Article 251 of the LNM, read in conjunction with Article 468 thereof, requires the national courts concerned to ascertain whether a third party has consented to a jurisdiction clause incorporated in the bill of lading it has acquired, even if that third party is subrogated to all of the rights and obligations of the shipper which concluded the contract evidenced by that bill of lading.

62 Moreover, it should be observed that that national legislation fails to have regard to the case-law stemming from the judgment of 9 November 2000, Coreck (C‑387/98, EU:C:2000:606, paragraph 25), in so far as it has the effect of granting more rights to the third-party holder of the bill of lading than those enjoyed thereunder by the shipper to whom the third party succeeded, that third party being free to choose not to be bound by the prorogation of jurisdiction agreed to by the original parties to the contract.

63 In those circumstances, it should be recalled that, in order to ensure the effectiveness of all provisions of EU law, the principle of primacy requires, inter alia, national courts to interpret, to the greatest extent possible, their national law in conformity with EU law (judgment of 8 March 2022, Bezirkshauptmannschaft Hartberg-Fürstenfeld (Direct effect), C‑205/20, EU:C:2022:168, paragraph 35 and the case-law cited).

64 The obligation to interpret national law in a manner consonant with EU law cannot, however, serve as a basis for an interpretation of national law contra legem (judgment of 8 March 2022, Bezirkshauptmannschaft Hartberg-Fürstenfeld (Direct effect), C‑205/20, EU:C:2022:168, paragraph 36 and the case-law cited).

65 It should also be borne in mind that the principle of primacy places the national court which is called upon within the exercise of its jurisdiction to apply provisions of EU law under a duty, where it is unable to interpret national legislation in compliance with the requirements of EU law, to give full effect to the requirements of that law in the dispute before it, if necessary disapplying of its own motion any national legislation or practice, even if adopted subsequently, in so far as it is contrary to a directly applicable provision of EU law, such as a provision of a regulation, and it is not necessary for that court to request or await the prior setting aside of such national legislation or practice by legislative or other constitutional means (see, to that effect, judgments of 21 January 2021, Whiteland Import Export, C‑308/19, EU:C:2021:47, paragraph 31, and of 8 March 2022, Bezirkshauptmannschaft Hartberg-Fürstenfeld (Direct effect), C‑205/20, EU:C:2022:168, paragraphs 37 and 57 and the case-law cited).

66 In the present case, Article 251 of the LNM refers to the provisions of Chapter I of Title IX of that law as regards the requirement relating to the consent of the acquirer of a bill of lading to jurisdiction clauses incorporated therein. Article 468 of the LNM, which falls under Chapter I, provides that it is ‘without prejudice … to the rules of [EU] law [that] 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’.

67 Consequently, it will be for the referring court to ascertain whether Article 251 of the LNM, read in conjunction with Article 468 thereof, can be interpreted as meaning that the rule which it lays down, under which the acquirer of the bill of lading acquires all of the transferor’s rights and actions over the goods, with the exception of jurisdiction clauses and arbitration clauses if they have not been negotiated individually and separately by that acquirer, is applicable to a situation only if that situation does not fall within the scope of Article 25(1) of the Brussels Ia Regulation. If the referring court finds that it cannot be interpreted in that way, it should disapply that national rule in the disputes in the main proceedings, in so far as it is contrary to that directly applicable provision of EU law.

68 In the light of the foregoing considerations, the answer to the second to fourth questions in each of the joined cases is that Article 25(1) of the Brussels Ia Regulation must be interpreted as precluding national legislation under which a third party to a contract for the carriage of goods concluded between a carrier and a shipper, who acquires the bill of lading evidencing that contract and thereby becomes a third-party holder of that bill of lading, is subrogated to all of the shipper’s rights and obligations, with the exception of those arising under a jurisdiction clause incorporated in the bill of lading, where that clause is enforceable against that third party only if the third party has negotiated it individually and separately.

69 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

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 the enforceability of a jurisdiction clause against the third-party holder of the bill of lading containing that clause is not governed by the law of the Member State of the court or courts designated by that clause. That clause is enforceable against that third party if, on acquiring that bill of lading, it is subrogated to all of the rights and obligations of one of the original parties to the contract, which must be assessed in accordance with national substantive law as established by applying the rules of private international law of the Member State of the court seised of the dispute.

must be interpreted as precluding national legislation under which a third party to a contract for the carriage of goods concluded between a carrier and a shipper, who acquires the bill of lading evidencing that contract and thereby becomes a third-party holder of that bill of lading, is subrogated to all of the shipper’s rights and obligations, with the exception of those arising under a jurisdiction clause incorporated in the bill of lading, where that clause is enforceable against that third party only if the third party has negotiated it individually and separately.

Court of Justice of the European Communities (including Court of First Instance Decisions)