ECJ judgment clarifies enforceability of jurisdiction clauses by claim assignees

A ruling by the European Court of Justice (ECJ) has clarified a key jurisdictional question for cross‑border disputes.

When a claim is assigned, the assignee may rely on the contract’s jurisdiction clause against the original debtor without its new consent. In this case, however, the applicable national law must regulate the transfer of the right to invoke the clause together with the claim (as an accessory), and the original parties must not have agreed otherwise.

The full decision can be read at CURIA - Documents.

The judgment (case no. C‑682/23) promotes legal certainty for international projects and transactional structures that depend on assignments, including construction, supply and receivables arrangements. It allows creditors to transfer their claims without changing the original jurisdiction and without new consent from the debtors. At the same time, it preserves predictability for defendants and respects party autonomy.

Background

The dispute arose from a multi‑layered construction project in Poland involving contracts under Polish law for design and construction works. A Romanian subcontractor and a Polish subcontractor concluded a subcontract containing a jurisdiction clause conferring jurisdiction on the Romanian courts. The Romanian subcontractor subsequently assigned a substantial damage claim against the Polish subcontractor for alleged improper performance to the Employer.

The assignee (the Employer) initiated the proceedings in Romania, invoking the jurisdiction clause designating the court of the assignor’s registered office. The defendant challenged the international jurisdiction of Romanian courts, arguing that the clause bound only the original signatories and could not be relied upon by a third‑party assignee. This challenge was admitted by the court of first instance. Following the interpretation put forward by both parties, the court of appeal sought clarification pertaining to Article 25(1) of the Brussels I Regulation and the effect of assignment on jurisdiction clauses where national law transfers accessory rights with the claim, and referred questions to the ECJ before ruling on the appeal.

ECJ’s judgment on the merits

The ECJ held that Article 25(1) allows a claim assignee to rely on the jurisdiction clause in the underlying contract against the original debtor under the same conditions that the assignor may have relied on it, and without the debtor’s new consent. The ECJ’s conclusion was followed by a reservation that applicable national law must provide that the assignment transfers not only the claim but also the rights attached to it, including the right to invoke the jurisdiction clause. Furthermore, the parties must not agree that such a transfer covers the jurisdiction clause.

The following two safeguards are central to the ECJ’s reasoning:

• legal certainty and foreseeability – the defendant must not be placed in a less favourable position than prior to the assignment. If the assignee sues in the forum that the assignor could have chosen under the clause, the defendant should not be taken by surprise.
• party autonomy – the original parties remain free to agree that the clause will not be enforceable by an assignee in the event of assignment. Absent such an express stipulation, the clause binds the defendant post‑assignment.

Why this case is precedent‑setting

The judgment resolves a recurring uncertainty in international disputes, particularly construction and infrastructure multi-layered, assignment-prone investments with the involvement of multiple international companies across the EU. It confirms that jurisdiction clauses are not stranded at the level of the original contract when national law regulates the transfer of the right to invoke the clause together with the claim as an accessory, and the parties do not agree otherwise.

For practitioners, the judgment offers clear guidance regarding assignments and their implications:

• Predictability in cross‑border litigation: the agreed jurisdiction remains available after assignment, absent a carve‑out. This is particularly significant in construction chains where claims frequently move between entities through assignment or project‑finance structures.
• Clarity on jurisdiction: a critical point is resolved with practical consequences for strategy, timing and forum selection. Assignees can rely on the agreed forum without renegotiating consent. Defendants can anticipate the forum if the assignee sues where the assignor could have sued.
• Drafting implications: parties who wish to prevent assignees from invoking jurisdiction clauses must say so expressly. Those seeking transferability should ensure that the transfer of accessory rights is allowed under governing law.
• EU law-national law interface: the judgment respects party autonomy under Article 25(1), ties the transferability of jurisdiction clauses to the national‑law effects of assignment, and preserves the Brussels I objectives of legal certainty and sound administration of justice.

For the market, the judgment provides a workable roadmap. In draft jurisdiction clauses with assignments, the ruling verifies whether jurisdictional clauses under governing law gives rise to accessory rights.

For more information on how this judgment could impact your projects or contracts in Poland and the EU, contact your CMS client partner or the CMS experts who advised the Employer (assignee) in the dispute and wrote this article: Piotr Stenko, Mateusz Jaworski and in Romania, Horia Draghici, Andrei Cristescu and Diana Valeria Ceausu.