A1 and A2 v I.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:344
• Date: 27 April 2023
• Docket Number: C-352/21
• Celex Number: 62021CJ0352
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Sixth Chamber)

27 April 2023 (*)

(Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EU) No 1215/2012 – Rules of jurisdiction in matters relating to insurance – Article 15(5) – Possibility of departing from those jurisdictional rules by agreement – Article 16(5) – Directive 2009/138/EC – Article 13(27) – Concept of ‘large risks’ – Hull insurance contract – Jurisdiction clause between the insurer and the insured – Enforceability of that clause against the insured – Pleasure craft not used for commercial purposes)

In Case C‑352/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Østre Landsret (High Court of Eastern Denmark, Denmark), made by decision of 27 April 2021, received at the Court on 28 May 2021, in the proceedings

A1,

A2

v

I,

THE COURT (Sixth Chamber),

composed of T. von Danwitz, acting as President of the Sixth Chamber, A. Kumin (Rapporteur) and I. Ziemele, Judges,

Advocate General: J. Richard de la Tour,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the European Commission, by S. Noë, H. Tserepa-Lacombe and C. Vang, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 15(5) and Article 16(5) 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).

2 The request has been made in proceedings between A1 and A2, two natural persons domiciled in Denmark, and I, an insurance company established in the Netherlands (‘the insurance company I’) concerning the validity of a jurisdiction clause in a hull insurance contract for a sailing boat.

Legal context

Regulation No 1215/2012

3 Recitals 15 and 18 of Regulation No 1215/2012 state:

‘(15) The rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile. …

…

(18) In relation to insurance, consumer and employment contracts, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules.’

4 The rules of jurisdiction in matters relating to insurance, which are the subject of Section 3 of Chapter II of Regulation No 1215/2012, are set out in Articles 10 to 16 thereof.

5 Article 10 of that regulation is worded as follows:

‘In matters relating to insurance, jurisdiction shall be determined by this Section, without prejudice to Article 6 and point 5 of Article 7.’

6 Article 11(1) of that regulation provides:

‘An insurer domiciled in a Member State may be sued:

(a) in the courts of the Member State in which he is domiciled;

(b) in another Member State, in the case of actions brought by the policyholder, the insured or a beneficiary, in the courts for the place where the claimant is domiciled; …

…’

7 Article 15 of Regulation No 1215/2012 provides:

‘The provisions of this Section may be departed from only by an agreement:

…

(5) which relates to a contract of insurance in so far as it covers one or more of the risks set out in Article 16.’

8 Article 16 of that regulation provides:

‘The following are the risks referred to in point 5 of Article 15:

(1) any loss of or damage to:

(a) seagoing ships, installations situated offshore or on the high seas, or aircraft, arising from perils which relate to their use for commercial purposes;

(b) goods in transit other than passengers’ baggage where the transit consists of or includes carriage by such ships or aircraft;

(2) any liability, other than for bodily injury to passengers or loss of or damage to their baggage:

(a) arising out of the use or operation of ships, installations or aircraft as referred to in point 1(a) in so far as, in respect of the latter, the law of the Member State in which such aircraft are registered does not prohibit agreements on jurisdiction regarding insurance of such risks;

(b) for loss or damage caused by goods in transit as described in point 1(b);

(3) any financial loss connected with the use or operation of ships, installations or aircraft as referred to in point 1(a), in particular loss of freight or charter-hire;

(4) any risk or interest connected with any of those referred to in points 1 to 3;

(5) notwithstanding points 1 to 4, all “large risks” as defined in Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) [(OJ 2009 L 335, p. 1)].’

9 As is clear from recital 41 of Regulation No 1215/2012, in accordance with Articles 1 and 2 of Protocol (No 22) on the position of Denmark annexed to the TEU and the TFEU, the Kingdom of Denmark did not participate in the adoption of that regulation and was not bound by it or subject to its application. However, under Article 3(2) of the Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2005 L 299, p. 62), that Member State notified the European Commission by letter of 20 December 2012 of its decision to implement the contents of that regulation, with the result that the provisions of the regulation are to be applied to the relations between the European Union and Denmark. In accordance with Article 3(6) of that agreement, the Danish notification creates mutual obligations between Denmark and the European Union (OJ 2013 L 79, p. 4).

Directive 2009/138

10 Article 13 of Directive 2009/138 provides:

‘For the purpose of this Directive:

…

(27) “large risks” means:

(a) risks classified under classes 4, 5, 6, 7, 11 and 12 in Part A of Annex I;

(b) risks classified under classes 14 and 15 in Part A of Annex I, where the policy holder is engaged professionally in an industrial or commercial activity or in one of the liberal professions and the risks relate to such activity;

(c) risks classified under classes 3, 8, 9, 10, 13 and 16 in Part A of Annex I in so far as the policy holder exceeds the limits of at least two of the following criteria:

(i) a balance-sheet total of EUR 6.2 million;

(ii) a net turnover … of EUR 12.8 million;

(iii) an average number of 250 employees during the financial year.

…

…’

11 Class 6, entitled ‘Ships (sea, lake and river and canal vessels)’ in Part A of Annex I to that directive is worded as follows:

‘All damage to or loss of:

– river and canal vessels,

– lake vessels,

– sea vessels.’

Council Decision 2014/887/EU

12 Recital 7 of Council Decision 2014/887/EU of 4 December 2014 on the approval, on behalf of the European Union, of the Hague Convention of 30 June 2005 on Choice of Court Agreements (OJ 2014 L 353, p. 5) states:

‘The Union should, when approving the Convention [on choice of court agreements concluded on 30 June 2005 under the auspices of the Hague Conference on international private law], in addition make the declaration allowed under Article 21 excluding from the scope of the Convention insurance contracts in general, subject to certain well-defined exceptions. The objective of the declaration is to preserve the protective jurisdiction rules available to the policyholder, the insured party or a beneficiary in matters relating to insurance under [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 exclusion should be limited to what is necessary...