Tribunale di Napoli; 2017-03-03; Bank (Suisse) c. Private Bank (Suisse) SA (Names not specified); Tribunale Napoli, sez. II, 03/03/2017, n. 2591
Decision by national courts in the field of European Union law — ECLI:IT:TRBNA:2017:S2591AC
Date: 2017-03-03
Subject matter: Brussels Convention of 27 September 1968;Lugano Convention
Origin: Italy

82017IT0303(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a dispute between an Italian investor (hereinafter 'the plaintiff') and two banks domiciled in Switzerland (hereinafter 'the defendants') adjudged by the Tribunale di Napoli (hereinafter 'the Court of First Instance'). The parties concluded two investment contracts, but the plaintiff sought to declare them null and void, and the repayment of all sums already paid in favour of the defendants plus compensation for damages he suffered.
The defendants raised an objection concerning the lack of jurisdiction of the Italian courts referring to the new Lugano Convention (1).
The Court of First Instance took into consideration Article 2 of the new Lugano Convention, according to which ‘persons domiciled in a State bound by this Convention shall, whatever their nationality, be sued in the courts of that State’. As the defendants were companies established by Swiss law and domiciled in Lugano, Switzerland, Article 2 pointed to the jurisdiction of the Swiss courts. Article 3 of this Convention provides an option that the persons domiciled in one State may be sued in another State, however, ‘only by virtue of the rules set out in Sections 2 to 7’ of Title II.
Article 5(1) provides that one of the examples of special jurisdiction regards contractual matters. In such cases, a person may be sued in a foreign State, specifically ‘in the courts for the place of performance of the obligation in question’. The new Lugano Convention further specifies that ‘place of performance of the obligation in question shall be, in the case of the provision of services, the place… where, under the contract, the services were provided or should have been provided.’ In the present case, the place of performance was in Switzerland as the defendants provided their financial services at the place of their establishments. Therefore, Article 5 also excludes Italian jurisdiction over this dispute.
Article 16 allows the consumer to bring proceedings against the other party of a consumer contract either in the courts of the State in which that party is domiciled or in the courts for the place where the consumer is domiciled. However, the Court of First Instance held that application of this Article is subject to conditions set out in Article 15(1)(c), according to which the defendants should have to pursue commercial or professional activities in Italy or, by any means, direct such activities to Italy (or to several States including Italy) and the contract shall fall within the scope of such activities in order to establish the jurisdiction of the Italian courts. The plaintiff did not provide any evidence of such activities, conversely, the defendants proved to be established in Switzerland. Therefore, not even Article 16 provides sufficient grounds to establish the jurisdiction of the Italian courts over this dispute.
The Court of First Instance considered also the claim regarding the nullity of the contracts in question. Pointing to fact that both contracts were signed by the plaintiff and the will of the plaintiff to enter into contracts was not rebutted, the contracts were held valid and effective between the parties.
In light of the foregoing, the Court of First Instance concluded the absolute lack of its jurisdiction to hear and decide this case.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Lugano, 2007).