1.

In 2015, in order to guarantee obligations assumed under a public contract concluded in Poland for the construction of a section of expressway, the undertakings which had been awarded the contract provided to the Polish contracting authority a number of guarantees underwritten by a Bulgarian insurer.

2.

Some years later, the contractors unsuccessfully applied to a Polish court for provisional, including protective, measures prohibiting the contracting authority from making use of those guarantees. The contractors made a similar application to the Bulgarian courts, which dismissed the application at first instance and granted it on appeal.

3.

The Polish contracting authority appealed to the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria). That appeal requires a determination, inter alia other matters, of whether, in the light of Article 35 of Regulation (EU) No 1215/2012, ( 2 ) the Bulgarian courts have international jurisdiction to adopt the provisional, including protective, measures sought. ( 3 )

4.

Unless I am mistaken, the Court of Justice has so far given one ruling on that article. ( 4 ) However, judgments given in the light of previous instruments ( 5 ) shed light on the referring court’s questions, without resolving them.

5.

In accordance with the instructions given by the Court, this Opinion will address only the second question referred for a preliminary ruling. The answer will require a detailed examination of the relationship between two courts of different Member States – the court seised of the proceedings as regards the substance and the court seised solely in relation to provisional, including protective, relief – in cross-border situations, in respect of which Article 35 seeks ‘to avoid causing loss to the parties as a result of the long delays inherent in any international proceedings.’ ( 6 )

6.

Recital 33 states:

‘Where provisional, including protective, measures are ordered by a court having jurisdiction as to the substance of the matter, their free circulation should be ensured under this Regulation. However, provisional, including protective, measures which were ordered by such a court without the defendant being summoned to appear should not be recognised and enforced under this Regulation unless the judgment containing the measure is served on the defendant prior to enforcement. This should not preclude the recognition and enforcement of such measures under national law. Where provisional, including protective, measures are ordered by a court of a Member State not having jurisdiction as to the substance of the matter, the effect of such measures should be confined, under this Regulation, to the territory of that Member State.’

7.

In accordance with Article 2:

‘For the purposes of this Regulation:

8.

Article 29, in the section headed ‘Lis pendens – related actions’, reads:

‘1.   Without prejudice to Article 31(2), where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

2.   In cases referred to in paragraph 1, upon request by a court seised of the dispute, any other court seised shall without delay inform the former court of the date when it was seised in accordance with Article 32.

3.   Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.’

9.

In accordance with Article 35 (‘Provisional, including protective, measures’):

‘Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that Member State, even if the courts of another Member State have jurisdiction as to the substance of the matter.’

10.

Pursuant to Article 36, in the section headed ‘Recognition’:

‘1.   A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.

…’

11.

Article 42(2) stipulates:

‘For the purposes of enforcement in a Member State of a judgment given in another Member State ordering a provisional, including a protective, measure, the applicant shall provide the competent enforcement authority with:

12.

Article 45(1)(c) provides:

‘1.   On the application of any interested party, the recognition of a judgment shall be refused:

13.

Of relevance to this case are Article 18 (immunity of States); Articles 389 to 396 (adoption of provisional measures); Articles 397 to 403 (protective measures); and Articles 274 to 280 (appeals against orders).

14.

Given that my Opinion will focus solely on the interpretation of Article 35 of Regulation No 1215/12, it is not necessary to transcribe those articles.

15.

By a contract dated 30 July 2015, the Skarb Państwa Rzeczypospolitej Polskiej reprezentowany przez Generalnego Dyrektora Dróg Krajowych i Autostrad (‘Polish Public Treasury’) commissioned the undertakings TOTO SpA – Costruzioni Generali and Vianini Lavori SpA, acting as a consortium registered in Italy, to construct the S-5 Poznan-Wrocław expressway, section Poznan A2, Gluchovo-Wronczyn.

16.

The parties included in the contract a clause – clause 20.6 – allocating jurisdiction to settle disputes between them to the courts for the place where the contracting authority is domiciled (the Polish courts). ( 8 )

17.

In that contract, guarantee Nos 02900100000348 and 02900100000818 were provided to secure, respectively, performance of the contract ( 9 ) and the possible payment of a ‘contractual penalty’ following completion of the works. ( 10 ) Both guarantees were provided by the Bulgarian insurance company Euroins AD and are governed by Polish substantive law.

18.

Both contractor companies brought actions for a negative declaration against the Polish State Treasury before the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland). They sought ‘a declaration that the State Treasury … was not entitled to demand payment of the contractual penalty agreed, since the conditions for such payment are not met, and nor was the defendant entitled to a contractual penalty for the late performance of the contract as alleged by it.’ ( 11 )

19.

In addition, the contractors requested the court ‘to adopt interim measures ordering the defendant to refrain, in particular, from making use of guarantee Nos 02900100000348 and 02900100000818 provided by the insurance company Euroins AD’. ( 12 )

20.

By order of 7 June 2019, the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland) refused to adopt the provisional, including protective, measures sought. ( 13 )

21.

On 31 July 2019, the contractors again applied for the adoption of those measures, this time before the Sofiyski gradski sad (Sofía City Court, Bulgaria), in support of the actions before the Sąd Okręgowy w Warszawie (Regional Court, Warsaw).

22.

The application was rejected at first instance but granted on appeal by the Sofiyski apelativen sad (Court of Appeal, Sofía, Bulgaria). That court imposed, subject to the provision of a security, an attachment order against the receivable of the Polish State Treasury, consisting of guarantee Nos 02900100000348 and 02900100000818, provided in its favour by the insurance company Euroins AD.

23.

The Polish State Treasury appealed to the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria). In that appeal, it also submitted a European order for payment in accordance with Regulation (EC) No 1896/2006, ( 14 ) form E. ( 15 )

24.

The contractors, which had opposed the order using form F of Regulation No 1896/2006, submitted that form in the response to the appeal.

25.

Against that background, the Varhoven kasatsionen sad (Supreme Court of Cassation) has referred the following questions to the Court of Justice for a preliminary ruling:

26.

The request for a preliminary ruling was received at the Registry of the Court on 5 November 2020. The Court refused to deal with the request under Article 105 of the Rules of Procedure of the Court of Justice.

27.

Written observations were lodged by TOTO – Costruzioni Generali and Vianini Lavori, the Republic of Poland and the European Commission. All those parties, together with the Polish State Treasury, participated in the hearing held on 15 July 2021.

28.

As I have already stated, my Opinion will be confined to the second question referred. That question essentially concerns the relationship between courts of different Member States before which consecutive applications are made for provisional, including protective, measures under Regulation No 1215/2012.

29.

In order to answer that question, it is necessary to interpret Article 35 of Regulation No 1215/2012, which will make it possible to determine whether a court (in this case, a Bulgarian court) not having jurisdiction as to the substance of the case may adopt provisional, including protective, measures when the court having jurisdiction as to the substance of the case (in this instance, a Polish court) has already ruled on an identical application.

30.

Before suggesting an answer to that question, I shall set out a number of general aspects of Regulation No 1215/2012 which will help to inform the debate.

31.

Regulation No 1215/2012 establishes two procedures for obtaining provisional, including protective, measures in disputes falling within its scope:

32.

In the latter situation, the Court places certain conditions on the possibility that a court not having jurisdiction as to the substance may nevertheless have jurisdiction to rule on interim proceedings: ( 18 )

33.

Those constraints are due to the fact that Article 35 of Regulation No 1215/2021 confers on a party applying for provisional, including protective, measures an advantage capable of placing the opposing party at a disadvantage, since it constitutes an exception to the system of jurisdiction set up by the regulation. It must therefore be interpreted strictly. ( 22 )

34.

Furthermore, by adding a further forum, Article 35 could also encourage forum-shopping strategies ( 23 ) and abuse. ( 24 )

35.

Under Regulation No 1215/2012, the power of a court which adopts provisional, including protective, measures in accordance with Article 35 is also restricted as to their scope: the effects of such measures are confined to the territory of the Member State concerned. ( 25 )

36.

It must be recalled, however, that the admissibility of provisional, including protective, measures ordered by a court other than that which is, or will be, seised ( 26 ) of the substance of the case meets specific practical needs relating to provisional and interim judicial protection, ( 27 ) which are easy to comprehend.

37.

By means of that provision, the party concerned is afforded the opportunity to obtain a provisional, including protective, measure in the Member State where the assets or person against whom that measure is to be enforced are located. This avoids the difficulties inherent in having to litigate abroad first and then obtain recognition of the judgment given in another jurisdiction second. ( 28 )

38.

That opportunity is all the more necessary where the provisional, including protective, measures ordered ex parte by the court seised as to the substance (the adoption of which retains their surprise effect) are not permitted, in principle, ( 29 ) to circulate freely ( 30 ) between Member States pursuant to Regulation No 1215/2012. ( 31 )

39.

The prohibition of the free circulation of measures of this kind is expressed through the definition of ‘judgment’ in the second subparagraph of Article 2(a) of Regulation No 1215/2012. In practice, it results in the requirement laid down in Article 42(2) of the regulation: the enforcement in one Member State of a provisional, including protective, measure ordered in another Member State by the court seised of the main proceedings is subject to presentation of the certificate referred to in Article 53. That certificate includes specific details which confirm the status of the court and that the defendant was summoned to appear or, failing that, was served with the measure.

40.

There is no formal hierarchy between the forums available to an applicant for preventive, including protective, relief, who may choose between forums. Therefore, situations involving multiple proceedings for provisional, including protective, relief are possible, in respect of which the legislature did not expressly provide for a particular solution.

41.

Regulation No 1215/2012 includes a specific provision (Article 35) relating to provisional, including protective, measures. It could be said that, in this way, that provision supplements the inherent power of the court having jurisdiction as to the substance to adopt such measures. At the same time, it opens the door to identical proceedings before different courts, with the risk of irreconcilable decisions.

42.

The principle of priority which, in the section headed ‘Lis pendens – related actions’ of Regulation No 1215/2012, governs multiple proceedings between the same parties and involving the same cause of action, in accordance with Article 29 of the regulation, may, in my view, be applied to the interim stage of those proceedings. ( 32 )

43.

In accordance with that principle, the court before which the second application is made must ‘of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.’ The court seised of the second application must decline jurisdiction in favour of the court first seised once that court declares that it has jurisdiction. ( 33 )

44.

As I have explained, the co-existence of applications for provisional, including protective, measures before a court with jurisdiction as to the substance and another which does not have such jurisdiction (but which is seised pursuant to Article 35 of Regulation No 1215/2012) provides the party concerned with an option to avoid the delays that are usually associated with importing into one Member State a measure ordered in another.

45.

From that perspective, it could be described as paradoxical that a person applying for a provisional, including protective, measure before a second court specifically in order to avoid delays in the first court has to do so, pursuant to the rule on lis pendens, exclusively in the Member State of the main proceedings, simply because the application for that measure was made there in the first place. ( 34 )

46.

As an alternative, it is conceivable that, for the purposes of provisional, including protective, measures, the general rule on lis pendens (Article 29 of Regulation No 1215/2012) could be disapplied and, if two irreconcilable judgments are delivered, that difficulty could be addressed when an adjudication is made a posteriori on their recognition and enforcement. ( 35 )

47.

I believe, however, that that approach may not be compatible with Regulation No 1215/2012.

48.

Although the Court has not ruled on that point, it referred in negative terms to the ‘multiplication of the bases of jurisdiction in relation to one and the same legal relationship, which is contrary to the aims of the Convention’, with regard to Article 24 of the Brussels Convention. ( 36 )

49.

Currently, suffice it to say that the exceptions to the lis pendens rule are set out in the regulation and none matches that described. ( 37 ) The proposed changes in that respect, which were put forward in relation to Article 35 of Regulation No 1215/2012, did not go on to be included in the text, which suggests that there is no special treatment of lis pendens with regard to applications for provisional, including protective, measures under the system in force. ( 38 )

50.

In short, it is my view that the lis pendens rule in Article 29 of Regulation No 1215/2012 applies to applications for provisional, including protective, measures. Two consequences flow from that rule: (a) the court seised of the first application for interim relief has priority, once it has declared that it has jurisdiction; and (b) from that moment, the court seised of the second application for interim relief must decline jurisdiction in favour of the first court.

51.

The Court addressed the situation where provisional, including protective, measures have been ordered by two courts (one with jurisdiction under Article 24 of the Brussels Convention and the other chosen by the parties to adjudicate on the substance) in the judgment in Italian Leather, ( 39 ) in relation to Article 27(3) of the Brussels Convention.

52.

In that judgment, the Court:

53.

Since Article 27(3) of the Brussels Convention and the current Article 45(1)(c) of Regulation No 1215/2012 ( 43 ) are identical, it is possible to state that the same approach is required under the latter article.

54.

The referring court’s uncertainties underlying its second question, and the parties’ submissions in that respect, are based on a number of grounds which I shall examine in the following order:

55.

The jurisdiction of the court seised of the main proceedings to adopt provisional, including protective, measures is not dependent on a special relationship between the subject matter of the measure and the forum; it is sufficient if the conditions which, pursuant to Regulation No 1215/2012, justify the allocation of jurisdiction as to the substance of the matter, are satisfied.

56.

One of those conditions is that the parties have agreed on the choice of court having jurisdiction by means of a clause which confers exclusive jurisdiction pursuant to Article 25 of Regulation No 1215/2012.

57.

Since that is based on freedom of choice, it is legitimate to question whether any agreement conferring jurisdiction automatically applies to provisional, including protective, measures. Conversely, the question could be asked whether a choice of forum excludes, systematically, the right laid down in Article 35 of Regulation No 1215/2012.

58.

The Court has not yet dealt with that issue. The judgment in Italian Leather clarified, in any event, that the jurisdiction referred to in Article 35 can co-exist with that of a different court chosen by the parties to give a definitive ruling on the dispute.

59.

In my opinion, the parties may (at least, I can find no reasons which would prevent this), by agreement, accept or derogate from international jurisdiction in respect of interim relief if they are in a situation covered by Regulation No 1215/2012. Which disputes are covered by the choice of forum agreement and which are not is a question of interpretation of the agreement concluded between the parties.

60.

Naturally, it is advisable for the parties to state expressly their intention that the clause should also apply to interim relief. In the absence of clear intent, it could be presumed ( 44 ) that a choice of forum clause drafted in general terms extends the jurisdiction chosen to the adoption of provisional, including protective, measures.

61.

However, that approach does not apply to the exclusion of access to any court of another Member State other than that agreed: ( 45 ) waiver of the benefit of Article 35 of Regulation No 1215/2012 must not be presumed.

62.

In this case, the parties included in their contract a clause which, in general terms, designated the Polish courts as having jurisdiction to adjudicate on any disputes between them, since Poland is where the contracting authority is established. ( 46 )

63.

The referring court does not cast doubt on the exclusive jurisdiction of the Polish courts as to the substance of the case; it does question, however, whether that jurisdiction is also exclusive in matters of interim relief.

64.

The observations of the Polish Government and the contractor companies disagree as to the scope of the choice of forum in the contract. ( 47 ) For my part, I agree with the Commission that, whether or not that choice covers protective measures, thereby excluding any other jurisdiction, is a matter which must be determined by the referring court. ( 48 )

65.

In that context, it must be borne in mind that, to ensure foreseeability for the parties, ‘a jurisdiction clause can concern only disputes which have arisen or which may arise in connection with a particular legal relationship, which limits the scope of an agreement conferring jurisdiction solely to disputes which arise from the legal relationship in connection with which the agreement was entered into …’ ( 49 )

66.

Therefore, a jurisdiction clause will not apply to ‘litigation [that the undertaking which suffered the loss could not reasonably foresee] at the time that it agreed to the jurisdiction clause’. ( 50 )

67.

Without prejudice to the fact that, as I have stated, the decision falls to the referring court, I believe that the parties which signed up to the clause agreed in this case could have reasonably foreseen that one of them, if the situation arose, would apply for a provisional, including protective, measure to oppose enforcement of the guarantees. Disagreements regarding the enforcement of guarantees by contracting authorities are not uncommon in the sphere of public contracts.

68.

If the jurisdiction clause is found not to take effect in relation to interim protection, thereby negating the exclusive jurisdiction of the Polish courts, such a finding would still not result directly in confirmation of the jurisdiction of the Bulgarian courts as the courts to be seised in accordance with Article 35 of Regulation No 1215/2012.

69.

In those circumstances, the jurisdiction of the Bulgarian courts would be dependent, first, on the wording of the national rules in that regard. There would also have to be a real connection between the subject matter of the provisional, including protective, measure and the territorial jurisdiction of the Member State (Bulgaria).

70.

Questions have been raised concerning the existence of a real connecting link in this dispute, for two reasons:

71.

The requirement that there must be a real connecting link is directly related to the rationale for Article 35 of Regulation 1215/2012, which is that the measure is ordered and enforced in the same Member State. Therefore, the real connecting link is effectively given concrete expression in the assets to which the provisional, including protective, measure relates.

72.

The place of payment of the guarantee itself is, however, immaterial.

73.

In these proceedings, as stated above, the provisional, including protective, measures were intended to secure claims for a declaration that the Polish State Treasury is not entitled receive payment of the sums guaranteed. In implementation of those measures, the Bulgarian appellate court ordered the attachment of the Polish contracting authority’s receivable against the Bulgarian insurer Euroins AD.

74.

Whether there is a real connection between the Bulgarian courts and the provisional, including protective, measures will ultimately depend on whether the receivable concerned is considered to be located in Bulgaria, ( 52 ) a matter which it falls to the Bulgarian court to establish.

75.

Must the Bulgarian court declare that it does not have jurisdiction to adopt the provisional, including protective, measure sought when an identical application ( 53 ) was made before the (Polish) court seised as to the substance of the main proceedings and that court refused to grant it?

76.

There are two approaches to the answer, depending on whether or not the decision of the Polish court refusing to adopt provisional, including protective, measures, is final. Since the nature of that decision cannot be deduced with complete certainty from the information provided, I shall deal with both possible situations.

77.

In the scheme of Regulation No 1215/2012, substantive or interim proceedings brought in a Member State can be terminated by invoking, using the appropriate procedural route, a final ( 54 ) judgment on those proceedings given in another Member State.

78.

I deduce from the parties’ observations that the force of res judicata ( 55 ) of the Polish decision is a matter of contention which must be settled by the referring court. In any event, rather than res judicata (a notion which is faced with difficulties when applied to interim decisions), I prefer to talk about the definitive, that is final and non-appealable, nature of a judgment.

79.

If it is confirmed that the interim decision is final in Poland, it will also be able to take effect in Bulgaria and preclude (as long as the factual circumstances are the same) ( 56 ) the adoption of another measure having the same subject matter, parties and cause of action.

80.

The Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria) also asks about the time when the normative consequences of the existence of a foreign judgment must be drawn. In particular, that court asks whether it must declare that it does not have jurisdiction as soon as evidence of that judgment is produced.

81.

In principle, the answer is in the affirmative. Pursuant to Article 36(1) of Regulation No 1215/2012, no special procedure is required for recognition of a judgment of one Member State in another Member State. Anyone relying on such a judgment must, however, satisfy the procedural conditions laid down in Article 37, by producing an authenticated copy of the judgment and the certificate referred to in Article 53, which, according to the wording of the regulation, is essential. ( 57 ) The court or authority before which the foreign judgment is invoked may also request a translation or transliteration, as provided for in Article 37(2).

82.

It is for the party who is negatively affected by recognition of a judgment which has already been given to apply for refusal of recognition on any of the grounds laid down in Article 45, if it considers that appropriate. That application may be dealt with as an incidental question, under Article 36(3) of the regulation.

83.

Article 45(1)(c) cannot be relied on in that context: in the circumstances of the case, no measure having effects that are irreconcilable with those of the Polish judgment exists yet in Bulgaria, and therefore the argument against recognition of that judgment would not succeed.

84.

If the Polish judgment is subject to appeal in Poland, it will be necessary to conclude, for the purposes of Regulation No 1215/2012, that the proceedings relating to protective measures are still pending in that country.

85.

In that connection, the interested party can certainly apply for recognition of the measure in Bulgaria. ( 58 ) However, the fact that that measure is still open to appeal may make such an application premature. The regulation permits the court addressed to suspend recognition of a foreign judgment if that judgment is challenged in the Member State of origin. ( 59 )

86.

Since an identical and later application for protective relief is pending in Bulgaria, the lis pendens rule, which imposes ex officio obligations on the court seised second, is, to my mind, more appropriate.

87.

The document evidencing the Polish decision has (or may have, if it satisfies the conditions laid down by the applicable law) ( 60 ) probative force as regards the central elements of Article 29 of Regulation No 1215/2012:

88.

If, having examined those points, it is confirmed that the Polish court was seised of the proceedings first and that the threefold identity of subject matter, parties and cause of action exists, the Bulgarian court will have to decline jurisdiction in accordance with Article 29(1) of Regulation No 1215/2012.

89.

In the light of the foregoing considerations, I propose that the Court of Justice reply as follows to the second question referred for a preliminary ruling by the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria):