French court rejects attempt to use civil code to usurp Brussels Recast principles on jurisdiction

In a decision issued on 2 April 2025, the French Cour de Cassation considered the validity of a jurisdiction clause under Article 25(1) of the Brussels Recast¹. The French court rejected an attempt to invoke French national rules on standard form contracts in assessing the validity of an Irish jurisdiction clause.

This decision follows the CJEU's judgment in Società Italiana Lastre SpA and Agora SARL ("Lastre"). In its Lastre decision, the CJEU determined that while asymmetric clauses were not generally invalid as a matter of EU law, both the autonomous rules of EU law and the national laws of any Member State court designated in the clause may be relevant in assessing the clause's validity under Article 25(1).

While not addressing an asymmetric jurisdiction clause, the French ruling considered the jurisdiction clause in dispute by reference to both EU autonomous law and the law of the designated Member State. The French court rejected the claimant's attempt to disapply the contractual jurisdiction clause on the basis of French national law. Instead, the court held that the clause’s validity should be assessed by reference to Irish law given the Irish courts were specified in the jurisdiction clause, consistent with the wording of Article 25(1). The court also rejected an argument that it was permissible to import 'overriding mandatory provisions' of French law (as defined in Rome I²) into any assessment of a jurisdiction clause. It noted that jurisdiction clauses were outside scope of Rome 1.

Background

The French court's decision concerns a claim brought by a woman who had opened a social media account for professional use. In doing so, she had accepted the general terms and conditions of the social media company, which provided the Irish courts had exclusive jurisdiction to resolve any disputes arising thereunder. The claimant argued her account had been hacked and claimed damages from the social media company.

The social media company challenged the jurisdiction of the French courts on the basis of the Irish jurisdiction clause in the contract.

The claimant argued that the French courts should not enforce the Irish jurisdiction clause, relying on Article 1171 of the French civil code. Article 1171 provides that clauses in standard-form contracts (or 'adhesion contracts', as they are referred to under French law) are unenforceable if they create a significant imbalance between the rights and obligations of the parties. According to the claimant, the jurisdiction clause created such imbalance because requiring litigation before the Irish courts would impose a substantial burden on the claimant as a French individual. She further argued that Article 1171 was an 'overriding mandatory provision' within the meaning of Article 9.1 of Rome I, meaning it was for the French court to assess the validity of the jurisdiction clause under French law on standard terms.

In broad terms, Rome I (which was also in effect incorporated into UK law post Brexit) determines which law should apply to contractual obligations in civil and commercial matters. The principle of party autonomy underpins that regime but Rome I does provide for circumstances where another law may override the chosen law in a contract (or the law otherwise applicable pursuant to the rules). One such situation is where "overriding mandatory provisions³" of the forum apply. Those mandatory provisions are so important for protecting a state’s fundamental interests—such as public order, safety, or economic regulation—that they always have to be applied in certain situations, no matter what law would otherwise be applicable.

The decision

The French court rejected the argument that French overriding mandatory provisions applied to any assessment of the validity of the Irish jurisdiction clause. The court did not apply Rome I in this context. It noted that Rome I expressly excludes from its scope choice of court (jurisdiction) agreements and so such provisions could not possibly be overriding mandatory provisions of the forum under Rome I.

Moreover, the court considered Article 25(1) of the Brussels Recast, which provides: "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" [emphasis added].

The court noted that Article 25 made no provision for or reference to the application of overriding mandatory provisions. Rather, given the stipulation of the Irish courts in the contract, any assessment as to the validity of the clause could only be made by reference to Irish law. As there was no basis to apply French law, the claimant's argument that the clause was contrary to Article 1171 was "ineffective". The French court consequently declined jurisdiction. No further detail regarding the court's decision making process was included in the judgment.

Commentary

The French decision is a helpful reminder that when the national courts of EU member states assess the validity of a jurisdiction clause in addition to EU autonomous law, it is only the national law of the specified EU Member State court that is applicable to validity under Article 25 of the Brussels Recast.

The French court did not comment on whether, if the jurisdiction clause had provided for the jurisdiction of the French courts, the validity of the clause could have been challenged under France's national law, specifically Article 1171 of the civil code.