Supremo Tribunal de Justiça; 2023-12-12; 4721/17.0T8LSB.L2.S1.51
Decision by national courts in the field of European Union law — ECLI:PT:STJ:2023:4721.17.0T8LSB.L2.S1.51
Date: 2023-12-12
Subject matter: Judicial cooperation in civil matters
Origin: Portugal

82023PT1212(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a matter of jurisdiction in a case for civil liability for damages, brought before the Supremo Tribunal de Justiça (hereinafter ‘the Supreme Court’)
Crested Finance, S.A. (hereinafter ‘the plaintiff’), a company with a registered address in Panama, filed a court case in Portugal against Zurich Insurance, PLC, UK (hereinafter ‘the defendant’), claiming that:
In March 2014, the plaintiff held financial assets deposited in Espírito Santo Bankers Dubai (hereinafter ‘ESBD’), whose director proposed a discretionary management of said assets, intending to diversify the plaintiff’s investments. This director promised the plaintiff he would immediately sell the bonds of Grupo Espírito Santo (hereinafter ‘GES’), which were part of the plaintiff’s portfolio. In June 2014, the plaintiff discovered that only part of these bonds had been sold and, later, when GES went into liquidation, the plaintiff realised that they had no way of recuperating their loss. ESBD and its director both had hired professional liability insurance contracts with the defendant. Since their responsibility had been transferred to the insurance company (the defendant), the plaintiff asked the court to sentence the defendant to pay damages arising from the behaviour of the ESBD’s director. The contract of insurance had a jurisdiction clause which determined that Portuguese Law should apply to any conflict arising from the contract and that Portuguese courts should try the case.
The defendant replied that Portuguese courts did not have jurisdiction over the matter because the clause did not apply to third parties and because there was no relevant connection between the case and Portuguese territory.
The plaintiff counter-argued that the court should not allow the defendant to reject the jurisdiction which it had freely chosen in the contract, because that would be an abuse of its right, namely, venire contra factum proprium.
The Court of First Instance agreed with the defendant and absolved the defendant due to a lack of jurisdiction. The plaintiff appealed to the Tribunal da Relação de Lisboa (hereinafter ‘the Court of Appeal’), which upheld the decision of the Court of First Instance.
The plaintiff then appealed to the Supreme Court, which also upheld the judgment, with the following legal basis:
As per Article 59 of the CPC (1), under the principle of the primacy of European Union law, the CPC shall only apply if there are no European Union rules which define jurisdiction. In this case, Section 3 of the Brussels I Regulation (recast) (2) applies.
The defendant (insurance company) had its registered address in the United Kingdom, the plaintiff (injured party) in Panama, and ESFG in Luxembourg. The alleged harmful event occurred in Dubai, where the insured person, ESBD, had its registered address. All of this excludes the jurisdiction of Portuguese courts under Articles 11 and 12 of the Brussels I Regulation (recast).
As for the jurisdiction agreement, it does not apply, under Article 15, because it was entered into before the dispute arose, and because the contract of insurance sub judice did not cover any of the risks of Article 16, namely any of the ‘large risks’ as defined in Directive 2009/138/EC (3).
Finally, the Supreme Court did not consider that the defendant, on rejecting the jurisdiction which it had chosen in the insurance contract, had acted in abuse of right, namely venire contra factum proprium, because, under the terms of Article 334 of the CC (4), there is only abuse if the right is exercised in a way that manifestly crosses the boundaries of good faith, good customs or the social or economical purpose of the right in question. In other words, even if those boundaries were exceeded in the present case, it was not done to a degree that gravely offends the sense of justice of the average citizen.
(1) Código de Processo Civil (Code of Civil Procedure).
(2) 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 (recast).
(3) Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II).
(4) Código Civil (Civil Code).