CYIL vol. 14 (2023)

DOMINIKA MORAVCOVÁ CYIL 14 (2023) concept of civil and commercial matters is to be interpreted autonomously. The foreign element is, according to the case law of the Court of Justice, present whenever the situation is such as to raise questions concerning the determination of the international jurisdiction of the courts. 12 Article 1 excludes tax, customs, administrative matters, and also acta iure imperii from its scope. The negative definition of the material scope continues in paragraph 2, 13 which exhaustively enumerates the areas of proceedings which are excluded in particular because of the specific relationship between the subject-matter of the proceedings and a certain State, such as in the case of personal status, or which have a lex specialis treatment governed by another Union regulation. Choice of jurisdiction under the Brussels I bis Regulation can only be made if all the scopes are fulfilled. The choice of jurisdiction, if present, comes into effect as soon as the court hearing the case has examined whether the matter in question is or is not covered by the exclusive jurisdiction of the courts of one of the Member States. Brussels I bis recognises an explicit choice, contained in Article 25, and an implicit choice also referred to as ‘tacit’, which is defined in Article 26 of the Regulation. The requirements and characteristics of choice under Article 25 Brussels I bis include that the choice must be in writing, confirmed in writing, in a form which is in accordance with the usual practice between the parties, or in accordance with the usage in international trade. The choice of jurisdiction must necessarily prorogue the jurisdiction of the courts of the Member States since in practice it is not possible to impose an obligation on the courts of a third-country to hear a particular case on the basis of an EU regulation. In the case of electronic communications, which are becoming increasingly important, the choice is deemed to be ‘in writing’, provided that the communication provides a permanent record of the agreement. 14 The Court of Justice has declared that the technique of consent in an electronically concluded contract containing a prorogation clause may be considered an “electronic communication” within the meaning of the Brussels I bis Regulation. Crucially, it must provide a permanent record of the agreement and the ability to print and save the text of the terms in question before the contract is concluded. 15 The option under Article 25 Brussels I bis can be taken up by parties regardless of whether they are domiciled in the Member States, but it is only an exception to the personal scope of the Regulation and the temporal, territorial, and substantive scope must remain fulfilled. The jurisdiction of the chosen court can be prorogated by an agreement that is substantively valid under the law of the chosen Member State. 16 In practice, national legislation may refer to an assessment of validity according to the lex fori or the lex causae , which may make a choice de lege valid under the law of one Member State and invalid under the law of another Member State. 17 A choice of jurisdiction that satisfies the requirements laid down by the Regulation is given the legal force of exclusive jurisdiction. If the choice is negotiated in the context of a contract, it is not dependent on its other provisions and its validity cannot be challenged

12 Judgment of the Court of 1 March 2005, Owusu , C-281/02, EU:C:2005:120. 13 Art. 1 of the Brussels I bis Regulation. 14 Art. 25(2) of the Brussels I bis Regulation. 15 Judgment of the Court of 21 May 2015, El Majdoub , C-322/14, EU:C:2015:334. 16 Art. 25(1) of the Brussels I bis Regulation.

17 HESS, B., PFEIFFER, T., SCHLOSSER P. 2007. Report on the Application of Regulation Brussels I in the Member States. [online] Heidelberg: Ruprecht-Karls-Universitat Heidelberg, Institut fur Auslandisches und Internationales Privat – und -Wirtschaftsrecht, Study JLS/C4/2005/03, 2007. Available at: . Str. 159 last accessed on 30 May 2023.

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