Judgment;Summary — ECLI:EU:C:2024:165
Date: 2024-02-22
Language of the case: German
Court formation: Ninth Chamber
Subject matter: Approximation of laws;Transport;Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Austria

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Translation C-81/23 – 1 
Case C-81/23 
Request for a preliminary ruling 
Date lodged: 
15 February 2023 
Referring court: 
Oberster Gerichtshof (Austria) 
Date of the decision to refer: 
15 December 2022 
Appellant in the appeal on a point of law: 
MA 
Respondents in the appeal on a point of law: 
FCA Italy SpA 
FPT Industrial SpA 
  
In the case of applicant MA […] against the respondents (1) FCA Italy S.p.A., 
10135 Turin, […] Italy, […] and (2) FPT Industrial S.p.A., 10156 Turin, […] 
Italy, […] for EUR 16,500 […] and to determine, as a result of the appeal on a 
point of law (‘Revisionsrekurs’) brought by the applicant against the decision of 
the Oberlandesgericht Linz (Higher Regional Court, Linz, Austria), the court of 
appeal, of 3 October 2022, GZ 4 R 99/22i-48, amending the decision of the 
Landesgericht Salzburg (Regional Court, Salzburg, Austria) of 31 May 2022, GZ 
9 Cg 16/21k-44, has decided as follows: 
I. The following question is referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 TFEU: 
Must point 2 of Article 7 of Regulation (EU) No 1215/2012 of the European 
Parliament and of the Council of 12 December 2012 on jurisdiction and the 
recognition and enforcement of judgments in civil and commercial matters 
EN 
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(‘Regulation (EU) No 1215/2012’) be interpreted as meaning that, in an action for 
tortious liability against the developer of a diesel engine with a prohibited defeat 
device within the meaning of Article 5(2) of Regulation (EC) No 715/2007 on 
type approval, the place where the harmful event occurred in a case where the 
vehicle was bought by the applicant domiciled in Member State B (in this case: 
Austria) from a third party established in Member State C (in this case: Germany) 
is 
a) the place where the contract was concluded; 
b) the place where the vehicle was delivered, or 
c) the place where the physical defect constituting the damage occurred and, 
therefore, the place where the vehicle is normally used? 
[…]. [Procedural law matters] 
Grounds: 
In respect of I.: 
A. Facts 
[1] The applicant, whose domicile is in Krems an der Donau (Austria), and his 
wife purchased a Carado T337 camper van from the dealer established in 
Germany for a purchase price of EUR 55,000. The written sale contract was 
signed on 14 March 2019 at the seller’s seat in Germany. In accordance with 
the agreement concluded, the vehicle was transferred to the applicant and his 
wife by the Austrian seller’s distribution centre in Salzburg (Austria). 
[2] The first respondent, established in Italy, is the manufacturer of the basic 
vehicle; the second respondent, also established in Italy, developed the 
engine, which, according to the applicant’s claims in the main proceedings, 
is equipped with a prohibited defeat device within the meaning of 
Article 5(2) of Regulation (EC) No 715/2007 on type approval. 
B. The essential arguments of the parties in the main proceedings and earlier 
procedure 
[3] The applicant claims from the two respondents the payment of EUR 16,500 
by way of compensatory damages, and a declaration that they are liable for 
any future damage that he may sustain as a consequence of the purchase of 
the vehicle. A prohibited defeat device, for which the respondents are liable, 
was installed in the camper van he acquired from a German seller. The 
international jurisdiction of the court of first instance seised is based on 
Article 7(2) of Regulation No 1215/2012. The place of the occurrence, 
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within the meaning of that provision, was in Salzburg, because the vehicle 
was transferred to him there. 
[4] The second respondent objected that the court seised lacked international 
jurisdiction. According to the judgment of the Court of Justice of the 
European Union in Case C-343/19, VKI, the place where the damage occurs 
within the meaning of Article 7(2) of Regulation No 1215/2012, is, in a case 
such as the present one, in the Member State where the vehicle was 
purchased by the victim from a third-party seller. The ‘place of acquisition’ 
is the only decisive criterion for determining the ‘place of purchase’; it does 
not depend on the acquisition of ownership or the dispositive transaction. 
Purchase should therefore be treated in the same way as the conclusion of 
the contract, which is why the place where the damage occurred is in 
Germany and the court of first instance seised has no international 
jurisdiction. 
[5] The court of first instance dismissed the plea of lack of international 
jurisdiction raised by the second respondent. The damage alleged by the 
applicant did not materialise until the vehicle was transferred to the 
applicant in Austria, so that its international (local) jurisdiction was to be 
affirmed. 
[6] The court of appeal on a point of law upheld the second respondent’s 
appeal, declared that the court of first instance lacked international 
jurisdiction and dismissed the action. According to the decision of the Court 
of Justice of the European Union in Case C-343/19, VKI, the place where 
the damage occurs is the place where the vehicle was purchased. Since it is 
not possible to rely on national law to determine that place, it cannot be 
assumed that the term ‘purchase’ refers to the conclusion of the obligation 
transaction and the dispositive transaction, since the connection of 
contractual and substantial law is a specific Austrian feature. Since it is the 
sales contract which determines the reciprocal obligations (between the 
seller and the buyer), the place of occurrence of the harmful event must be 
determined by the ‘place of conclusion of the sales contract’. In the present 
case, this was in Germany, which is why the court of first instance lacks 
international jurisdiction. 
[7] The applicant’s appeal on a point of law, which was granted by the court of 
appeal on a point of law, is brought against that decision before the Oberster 
Gerichtshof (Supreme Court), which seeks to have the decision of the court 
of first instance (affirming international territorial jurisdiction) reinstated. 
[8] In its response to the appeal on a point of law, the second respondent 
requests that the counterparty’s appeal on a point of law be dismissed. 
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C. The relevant provisions 
[9] Article 7(2) of Regulation No 1215/2012 reads as follows: 
‘A person domiciled in a Member State may be sued in another Member State: 
… 
(2) in matters relating to tort, delict or quasi-delict, in the courts for the place 
where the harmful event occurred or may occur.“ 
D. Grounds for the request for a preliminary ruling 
[10] 1. The resolution of the dispute depends decisively on the interpretation of 
Article 7(2) of Regulation No 1215/2012. In the view of the Oberster 
Gerichtshof (Supreme Court), there is no ‘acte clair’ as regards the question 
referred for a preliminary ruling, which is why a reference for a preliminary 
ruling to the Court of Justice of the European Union is necessary. 
[11] 2. The Court of Justice of the European Union has already dealt with the 
(local) international jurisdiction at issue in this case in so-called ‘exhaust gas 
emissions manipulation cases’. 
In its judgment in Case C-343/19 VKI, the Court held that point 2 of 
Article 7 of Regulation (EU) No 1215/2012 of the European Parliament and 
of the Council of 12 December 2012 on jurisdiction and the recognition and 
enforcement of judgments in civil and commercial matters must be 
interpreted as meaning that, where a manufacturer in a Member State has 
unlawfully equipped its vehicles with software that manipulates data relating 
to exhaust gas emissions before those vehicles are purchased from a third 
party in another Member State, the place where the damage occurred is in 
that latter Member State. 
[12] In the grounds for that decision, the Court noted that it was apparent from 
the documents before the Court that the alleged damage takes the form of a 
loss in value of the vehicles in question stemming from the difference 
between the price paid by the purchaser for such a vehicle and its actual 
value owing to the installation of software that manipulates data relating to 
exhaust gas emissions. Consequently, while those vehicles became defective 
as soon as that software had been installed, the view must be taken that the 
damage asserted occurred only when those vehicles were purchased, as they 
were acquired for a price higher than their actual value. Such damage, which 
did not exist before the purchase of the vehicle by the final purchaser 
adversely affected, constitutes initial damage and is not merely an indirect 
consequence of the harm initially suffered by other persons. That damage is 
not purely financial, since it concerns a defect that affects tangible assets and 
the damage does not relate solely to the reduction in the financial assets of 
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the person concerned with no connection to a tangible asset (paragraphs 29 
to 35). 
[13] That decision was based on the situation where the applicant had purchased 
the vehicle – in the context of an action for tortious liability against the 
foreign motor vehicle manufacturer – from a dealer established in the 
Member State of the applicant’s domicile. In that situation, the Court 
referred to the ‘purchase’ (cf. paragraph 34f. and paragraph 39) of the 
vehicle in the Member State of the applicant’s domicile. 
[14] 3. In the decision relating to 3 Ob 24/21g, the Oberster Gerichtshof 
(Supreme Court) concluded that, in order to determine that the place where 
the damage occurred was in the Member State of the purchaser’s domicile, 
the decisive factor was whether the purchaser had purchased and taken over 
the vehicle in the Member State of his domicile. Since the sales contract was 
concluded and the vehicle was transferred in Germany, however, the damage 
occurred at the place of purchase in Germany. That conclusion would not be 
altered if, already at the time of conclusion of the contract, it was known to 
the seller that the applicant intended to import the vehicle into Austria and to 
use it mainly there. 
[15] That decision was based on the situation where the applicant, domiciled in 
Austria, purchased the vehicle abroad and it was also transferred to him 
there. 
[16] 4.1 The present case differs from the situations described above by the fact 
that the place where the contract was concluded and the place where the 
vehicle was transferred to the adversely affected purchaser differ. In the 
present case, the vehicle was purchased in Germany and transferred to the 
applicant by the German seller in Austria. The second respondent, the 
developer of the diesel engine in question, is established in Italy. 
[17] 4.2 In this situation, the applicant considers that the damage can occur only 
where the vehicle was transferred, because, under the contract, a vehicle free 
from defect was due and the purchase process was only completed at the 
time of transfer. Thus ‘purchase’ can refer only to the definitive acquisition 
of ownership. 
[18] The second respondent, on the other hand, considers that the decision should 
be based on the conclusion of the contract. The detrimental financial 
position of the victim already lies in the conclusion of the detrimental 
contract. Since recourse to national law is precluded for determining the 
place of occurrence of the harmful event and there can be no differences in 
the place of occurrence between the Member States, the distinction between 
the legal transaction that creates the relationship of obligation (title) and the 
dispositive legal transaction (procedure) cannot be decisive either. 
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[19] 5.1 The Oberster Gerichtshof (Supreme Court) is uncertain, in the present 
context, whether the reference to the ‘purchase of the vehicle’ in decision 
C-343/19, VKI, may also be decisive for the present case, since that concept 
refers typically to aspects of contract law and property law. Under Austrian 
law, ‘purchase’ (in the sense of acquisition of ownership) consists of the 
transaction that creates the relationship of obligation (title) and the 
dispositive transaction (procedure, in particular transfer). In the event of a 
discrepancy between the place of conclusion of the contract and the place of 
transfer, ownership is acquired only at the place of the transfer of the 
movable property. By contrast, under French law, for example, ownership is 
transferred, as a general rule, as soon as the contract is concluded 
(Article 1196 of the Code civil (Civil Code)); under the consensus principle, 
only the transaction that creates the relationship of obligation is in principle 
decisive for the acquisition (of ownership). 
[20] This view of contractual and property law would require different 
considerations relating to the acquisition of property for the purposes of 
determining the place of the occurrence of the tort in accordance with the 
applicable national law and would lead to different results. However, this 
would be contrary to the case-law of the Court according to which the place 
of occurrence within the meaning of Article 7(2) of Regulation 
No 1215/2012 must (also) be determined independently. That place must be 
determined uniformly for all Member States, meeting the requirement of 
predictability of jurisdiction (cf. C-343/19 VKI, paragraph 36 with further 
references), and not depend on the contractual and property law rules of the 
Member States concerned. If, in the present case, the place of conclusion of 
the contract were to be decisive, that would also be contrary to the principle 
that the existence of special jurisdiction under Article 7 of Regulation 
No 1215/2012 presupposes the existence of a close connection between the 
court and the action to avoid the possibility of the respondent being sued in a 
court of a Member State which he could not reasonably have foreseen (see 
Case C-194/16 Bolagsupplysningen, paragraph 28). The dispute to be judged 
here between the applicant and the second respondent has no relevant 
connection with the place where the contract was concluded in Germany. 
[21] 5.2 Although, in its answer to the question referred for a preliminary ruling 
in Case C-343/19, VKI, the Court referred to the ‘purchase’ of the vehicle in 
the Member State of the applicant’s domicile, the grounds for that decision 
enable another essential assessment criterion to be identified. The Court held 
that where damage (such as reduction in value) is claimed in connection 
with the acquisition of defective goods (for example, a defective vehicle), 
the primary damage occurs only after the victim purchases the defective 
goods from a third party (seller) and such damage is not purely financial 
(paragraphs 30 to 35). 
[22] It can be concluded from this that the relevant criterion for the jurisdictional 
attribution of the place where the damage occurred to the Member State of 
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the damaged applicant’s domicile is that the primary damage lies in the 
defectiveness of the property. Classification as the place where the damage 
occurred would be based decisively on where the defect has its effect. In 
cases where it must be clear to all parties that the normal use of the defective 
vehicle is in the Member State of the applicant’s domicile, international 
(local) jurisdiction would be in that Member State, leading to a forum 
actoris. 
[23] 6. That conclusion is consistent with the case-law principles developed by 
the Court of Justice of the European Union concerning Article 7(2) of 
Regulation No 1215/2012. 
[24] The present case concerns international local territorial jurisdiction in 
matters of tortious liability under Article 7(2) of Regulation No 1215/2012. 
For this jurisdiction, there is no need to establish a connecting factor falling 
within the scope of contract law ([…]). For the purposes of determining the 
place of occurrence of the harmful event under Article 7(2) of Regulation 
No 1215/2012, it is necessary to take as a basis the place where the damage 
occurred (see Case C-709/19 Vereniging van Effectenbezitters, paragraph 26 
ff.), whereby special criteria for the attribution of jurisdiction may plead 
from the outset in favour of determining the place where the harmful event 
occurred to be in the Member State of the applicant’s domicile, giving rise to 
a forum actoris (see Case C-12/15 Universal Music, C-304/17, Löber, 
paragraph 34). According to the case-law of the Court of Justice of the 
European Union, a breach of legal obligations in respect of a prospectus or 
the breach of legal information obligations in the Member State of the 
applicant’s domicile (see Case C-709/19 Vereniging van Effectenbezitters) 
or the management of accounts through which investments are typically 
made and where damage may typically occur (bank and securities accounts 
with a clearing account) with banks in the Member State where the applicant 
is domiciled may be considered to be such criteria (see Case C-304/17 
Löber). The impact of a defect affecting the proper functioning of an item of 
property could also be considered to be a specific award criterion for 
determining the place of occurrence of the harmful event. 
In respect of II.: 
[…]. (Procedural law matters) 
Oberster Gerichtshof (Supreme Court, Austria) 
Vienna, 15 December 2022 
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