JURE summary

JURE summary

I. Portuguese law allows parties to form agreements on international jurisdiction, within the principle of private autonomy.

II. Community Law, in Article 23(1) of the Council Regulation (EC) no 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation), allows parties, as long as at least one of them is domiciled in a Member State, to agree "… 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" and so "that court or those courts shall have jurisdiction...".

III. Considering that the Law does not require the court to take initiative in analysing whether it has international jurisdiction, without having been requested to do so by either party, and also considering that the matter of jurisdiction was not brought up by either party within another case filed by the Appellee against the Appellant, it is clear that the ongoing case in the Portuguese courts does not preclude the possibility of filing another case, based on the same contract, between the same parties, with a different claim and legal basis, before the court which the parties had agreed as having jurisdiction.

IV. A preliminary ruling is one where a court of any Member State considers it necessary to solve a dispute which has been brought before it, and it regards the interpretation, or appreciation of validity, of EU Law (except regarding the validity of the Treaties).

V. This preliminary jurisdiction, which is based on the preliminary reference procedure, foreseen in the aforementioned legal norm, is a form of judicial cooperation, which intends to assure the effectiveness of Community Law and its prevalence over national Law, thereby allowing a concrete control of the validity of EU subsidiary Law, while at the same time maintaining uniformity in the interpretation and application of their respective norms.

VI. The preliminary reference to the Court of Justice of the European Union (CJEU) is, in principle, optional, depending exclusively on the discretionary power of the national court, although there are certain cases when it may be compulsory.

VII. The issue of the apparent obligation of a court or tribunal against whose decisions there is no judicial remedy under national Law to make a reference for a preliminary ruling, was resolved by the CILFIT judgment of October 6th 1982, which concluded that the involvement of EU courts is only justified when considered necessary by the national judge in order to solve a dispute and, furthermore, whenever a question arises concerning the interpretation of Community law.

VIII. The abovementioned «duty» to make a reference for a preliminary ruling is not absolute, and loses its significance whenever the matter is identical to another one, previously submitted to a preliminary ruling, thereby recognising that "the correct application of community law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved", as per the doctrine of "acte clair", in juxtaposition to the "acte éclairé" theory, with the purpose of avoiding the intervention of EU courts whenever they have previously ruled on the same issues and/or similar cases. The decisions of CJEU are a blend of "Acórdão Uniformizador de Jurisprudência", in their typically abstract appreciation, and the more concrete aspect of the precedent rule.

IX. The case law of the CJEU is clear in considering that an agreement conferring jurisdiction sustained in Article 23 of the Brussels I Regulation is autonomous regarding the national laws of the Member States.