Short answer
Under the Brussels I bis Regulation, the normal starting point is the courts of the Member State where the defendant is domiciled. A claimant may instead use special contract jurisdiction at the place of performance: normally where goods were or should have been delivered, or where services were or should have been provided. Exclusive rules for matters such as rights in rem in land, company validity, public registers, registered intellectual-property validity and enforcement of judgments override both routes.
Commercial parties can usually choose the courts of a Member State. The clause must concern a particular legal relationship and satisfy the Regulation's consent and form rules. It is normally exclusive, independent from the rest of the contract, and can be recorded electronically if it can be saved or printed.
That freedom is sharply limited for a consumer, employee, policyholder, insured person or beneficiary. A pre-dispute clause generally cannot take away the protected person's statutory forums. It can usually be agreed after the dispute, or before it only where the relevant protective section expressly permits it—most commonly because it gives the protected person additional courts rather than fewer. Insurance has further exceptions, including certain same-state arrangements and large commercial risks.
Jurisdiction answers where proceedings may be brought. It does not decide which country's substantive law governs the contract, whether the claim succeeds, or whether the judgment can ultimately be enforced.
Begin with the defendant's domicile
Regulation (EU) No 1215/2012, called Brussels I bis, governs jurisdiction in civil and commercial matters. It excludes specified fields including public law, arbitration, insolvency, maintenance and succession.
Article 4 supplies the default:
“persons domiciled in a Member State shall ... be sued in the courts of that Member State.” —
For a company, Article 63 treats its statutory seat, central administration and principal place of business as domiciles. If the defendant is outside the EU, national rules normally apply, subject to specified consumer, employment, exclusive-jurisdiction and court-agreement exceptions.
Contract jurisdiction at the place of performance
Article 7(1) offers an alternative to the defendant's domicile. A person domiciled in one Member State may be sued in another Member State in matters relating to a contract:
- for a sale of goods, where the goods were delivered or should have been delivered;
- for services, where the services were provided or should have been provided; or
- for another contract, at the place of performance of the obligation in question, determined under the applicable rules.
The court examines the characteristic obligation and agreed or actual performance; multi-place and mixed arrangements require closer analysis.
Some disputes cannot be redirected by ordinary contract rules or party agreement. Article 24 gives exclusive jurisdiction to specified courts regardless of domicile. Examples include courts where immovable property is situated for proceedings principally about rights in rem; courts at a company's seat for proceedings principally about the validity of its constitution or organ decisions; and courts of the registration state for proceedings about the registration or validity of a patent, trade mark or design. Courts in the enforcement state have exclusive jurisdiction over enforcement proceedings.
What makes a commercial choice-of-court clause valid?
Article 25 lets parties, regardless of domicile, choose a court or the courts of a Member State for disputes arising from a particular legal relationship. Unless they agree otherwise, the chosen jurisdiction is exclusive. The agreement must be:
- in writing or evidenced in writing;
- in a form matching practices established between the parties; or
- in international trade, in a form matching a usage the parties knew or should have known and that is widely known and regularly observed in that trade.
In C-540/24, the Court confirmed that Article 25 covered a clause between two UK-domiciled parties, concluded during the Brexit transition, choosing a Member State court even though proceedings began after the transition.
Electronic communication counts as writing if it provides a durable record. The Court of Justice held in El Majdoub, C-322/14, that click-wrapping met that test where the buyer had to accept the terms and could print and save them before contracting. In Tilman, C-358/21, a signed business contract expressly referring to online standard terms could satisfy the rule where the linked terms were available to view, download and print before signature; a separate tick-box was not essential on those facts.
Those judgments do not validate hidden web terms. Consent and communication through the contracting process must be established, with a retainable record available before conclusion.
Substantive validity is assessed under the law of the chosen Member State, including its conflict-of-laws rules. Article 25 also makes the jurisdiction agreement separable: invalidity of the main contract alone does not invalidate the clause. But the clause has no force if it contradicts the protective insurance, consumer or employment rules, or tries to displace a court with exclusive jurisdiction under Article 24.
An exclusive clause also receives procedural priority. Under Article 31(2), another Member State's court must generally stay proceedings once the chosen court is seised, even if the non-chosen court was seised first. This protects against tactical “torpedo” proceedings. The priority does not rescue a clause that is invalid under the protective sections when the protected person is the claimant.
Consumers: directed activity and protected forums
The consumer section applies where a natural person contracts outside their trade or profession and one of Article 17's conditions is met. For ordinary online commerce, the trader must pursue activities in the consumer's Member State or direct activities there, and the contract must fall within those activities.
Mere website accessibility is not enough. In joined cases Pammer and Hotel Alpenhof, C-585/08 and C-144/09, the Court required evidence that the trader envisaged doing business with consumers in the other state. Indicators include the activity's international nature, directions from other states, foreign domains, international contact details, cross-border advertising and an international clientele. Language and currency can also matter, but an overall assessment is required.
Where the section applies, the consumer may sue either where the trader is domiciled or where the consumer is domiciled. The trader may sue the consumer only where the consumer is domiciled. Article 19 permits departure only through an agreement made after the dispute; one that gives the consumer additional courts; or a qualifying same-Member-State agreement that is lawful there.
Consumer jurisdiction may be varied only by one of Article 19's limited agreements. —
A standard pre-dispute clause selecting the trader's home court therefore cannot normally remove a protected consumer's right to sue at home or require the trader to sue elsewhere.
Employees: the habitual workplace remains central
An employee may sue an EU-domiciled employer where the employer is domiciled, or where or from where the employee habitually works, including the last such place. If there was no habitual work country, the courts where the engaging business is or was situated may have jurisdiction. These rules can also reach a non-EU employer in specified circumstances.
The employer, by contrast, may ordinarily sue only in the Member State where the employee is domiciled. Under Article 23, a jurisdiction agreement is effective only if made after the dispute arose or if it gives the employee additional forums. A clause signed on recruitment that forces all claims into the employer's preferred court usually cannot reduce the employee's statutory choices.
For remote and mobile work, the real centre from which the employee organises and performs duties matters; payroll location or the contract's stated worksite is not automatically decisive.
Insurance: identify the protected person and the risk
The insurance section generally lets a policyholder, insured person or beneficiary sue an EU-domiciled insurer either where the insurer is domiciled or where the claimant is domiciled. Additional forums apply in liability and property insurance. The insurer may generally sue only where the protected defendant is domiciled.
Article 15 permits a jurisdiction agreement only in listed situations. These include an agreement after the dispute; one expanding the policyholder's, insured person's or beneficiary's choices; certain agreements between parties domiciled or habitually resident in the same Member State; specified non-EU policyholders; and insurance covering Article 16 risks, including defined “large risks.” The exact policy, claimant and risk classification must therefore be checked before assuming that a commercial insurance clause works.
A practical jurisdiction review
Before filing or relying on a clause, record:
- the parties' domiciles and the claim's basis;
- delivery, service and habitual-work locations;
- whether Article 24 gives another court exclusive jurisdiction;
- the exact clause, version of the terms, acceptance journey and retained record;
- whether a party is protected and whether the clause expands or restricts their forums; and
- any competing proceedings already filed.
Courts examine jurisdiction independently from the merits. A defendant that appears without contesting jurisdiction may submit to the court under Article 26, although courts have an additional duty to inform protected insurance parties, consumers and employees sued as defendants about the consequences of appearance.
Conclusion
The defendant's domicile is the dependable starting point, with the contractual place of performance as the main alternative. A clearly incorporated Article 25 agreement can give commercial parties predictability and priority, but cannot override exclusive jurisdiction. Consumers, employees and protected insurance parties receive asymmetrical forums, and a pre-dispute clause normally works against them only within narrow statutory exceptions. The safest drafting exercise is therefore not merely to name a court, but to test the relationship, protected status, form, timing and scope of the clause before contracting.
Sources
This article provides general legal information, not advice for a specific matter. Laws, facts and procedural deadlines may change the result. Follow the linked primary sources and obtain local advice before acting.