# C_2016211EN.01000301.xml

| 13.6.2016 | EN | Official Journal of the European Union | C 211/3 |
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13.6.2016

EN

Official Journal of the European Union

C 211/3

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Judgment of the Court (First Chamber) of 20 April 2016 (request for a preliminary ruling from the Corte suprema di cassazione — Italy) — Profit Investment Sim SpA, in liquidation v Stefano Ossi and Others

(Case C-366/13) (1)

((Reference for a preliminary ruling - Regulation (EC) No 44/2001 - Area of Freedom, Security and Justice - Concept of ‘irreconcilable judgments’ - Actions having different subject-matters brought against several defendants domiciled in various Member States - Conditions for the prorogation of jurisdiction - Jurisdiction clause - Concept of ‘matters relating to a contract’ - Verification of the lack of a valid contractual link))

(2016/C 211/03)

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Applicant: Profit Investment Sim SpA, in liquidation

Defendants: Stefano Ossi, Commerzbank Brand Dresdner Bank AG, Andrea Mirone, Eugenio Magli, Francesco Redi, Profit Holding SpA, in liquidation, Redi & Partners Ltd, Enrico Fiore, E3 SA

Operative part of the judgment

| 1. | Article 23 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that:






  — | where a jurisdiction clause is included in a prospectus concerning the issue of bonds, the formal requirement laid down in Article 23(1)(a) of Regulation No 44/2001 is met only if the contract signed by the parties upon the issue of the bonds on the primary market expressly mentions the acceptance of that clause or contains an express reference to that prospectus; |
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1.

Article 23 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that:

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where a jurisdiction clause is included in a prospectus concerning the issue of bonds, the formal requirement laid down in Article 23(1)(a) of Regulation No 44/2001 is met only if the contract signed by the parties upon the issue of the bonds on the primary market expressly mentions the acceptance of that clause or contains an express reference to that prospectus;

| — | a jurisdiction clause contained in a prospectus produced by the bond issuer concerning the issue of bonds may be relied on against a third party who acquired those bonds from a financial intermediary if it is established, which it is for the referring to verify, that (i) that clause is valid in the relationship between the issuer and the financial intermediary, (ii) the third party, by acquiring those bonds on the secondary market, succeeded to the financial intermediary’s rights and obligations attached to those bonds under the applicable national law, and (iii) the third party had the opportunity to acquaint himself with the prospectus containing that clause; and |
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a jurisdiction clause contained in a prospectus produced by the bond issuer concerning the issue of bonds may be relied on against a third party who acquired those bonds from a financial intermediary if it is established, which it is for the referring to verify, that (i) that clause is valid in the relationship between the issuer and the financial intermediary, (ii) the third party, by acquiring those bonds on the secondary market, succeeded to the financial intermediary’s rights and obligations attached to those bonds under the applicable national law, and (iii) the third party had the opportunity to acquaint himself with the prospectus containing that clause; and

| — | the insertion of a jurisdiction clause into a prospectus concerning the issue of bonds may be regarded as a form which accords with a usage in international trade or commerce, for the purpose of Article 23(1)(c) of Regulation No 44/2001, allowing the consent of the person against whom it is relied upon to be presumed, provided inter alia that it is established, which it is for the referring court to verify, (i) that such conduct is generally and regularly followed by the operators in the particular trade or commerce concerned when contracts of that type are concluded and (ii) either that the parties had previously had commercial or trade relations between themselves or with other parties operating in the sector in question, or that the conduct in question is sufficiently well known to be considered an established practice. |
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the insertion of a jurisdiction clause into a prospectus concerning the issue of bonds may be regarded as a form which accords with a usage in international trade or commerce, for the purpose of Article 23(1)(c) of Regulation No 44/2001, allowing the consent of the person against whom it is relied upon to be presumed, provided inter alia that it is established, which it is for the referring court to verify, (i) that such conduct is generally and regularly followed by the operators in the particular trade or commerce concerned when contracts of that type are concluded and (ii) either that the parties had previously had commercial or trade relations between themselves or with other parties operating in the sector in question, or that the conduct in question is sufficiently well known to be considered an established practice.

| 2. | Article 5(1)(a) of Regulation No 44/2001 must be interpreted as meaning that actions seeking the annulment of a contract and the restitution of sums paid but not due on the basis of that contract constitute ‘matters relating to a contract’ within the meaning of that provision. |
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2.

Article 5(1)(a) of Regulation No 44/2001 must be interpreted as meaning that actions seeking the annulment of a contract and the restitution of sums paid but not due on the basis of that contract constitute ‘matters relating to a contract’ within the meaning of that provision.

| 3. | Article 6(1) of Regulation No 44/2001 must be interpreted as meaning that where two actions — which have different subject-matters and bases and which are not connected by a link of subordination or incompatibility — are brought against several defendants, the fact that the upholding of one of those actions is potentially capable of affecting the extent of the right whose protection is sought by the other action does not suffice to give rise to a risk of irreconcilable judgments within the meaning of that provision. |
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3.

Article 6(1) of Regulation No 44/2001 must be interpreted as meaning that where two actions — which have different subject-matters and bases and which are not connected by a link of subordination or incompatibility — are brought against several defendants, the fact that the upholding of one of those actions is potentially capable of affecting the extent of the right whose protection is sought by the other action does not suffice to give rise to a risk of irreconcilable judgments within the meaning of that provision.

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(1)  OJ C 260, 7.9.2013.

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