Nejvyšší soud; 2019-11-26; 30 Cdo 3918/2017
Decision by national courts in the field of European Union law — ECLI:CZ:NS:2019:30.CDO.3918.2017.1
Date: 2019-11-26
Subject matter: Judicial cooperation in civil matters
Origin: Czechia

82019CZ1126(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a question of international jurisdiction of the Czech courts resolved by the Nejvyšší soud (hereinafter ‘the Supreme Court’).
A woman domiciled in the Czech Republic (hereinafter ‘the plaintiff’) remotely concluded a framework contract with a brokerage company domiciled in Cyprus (hereinafter ‘the defendant’), the purpose of which was to enable her to make transactions on the international foreign exchange market by placing orders to buy and sell the base currency (classified as individual financial contracts for differences), which the defendant would carry out by means of its online trading platform.
The plaintiff placed an order to purchase a specific amount of Japanese yen at a fixed rate. The order was executed by the defendant with a delay of 16 seconds, during which fluctuation in the exchange rate occurred. As a result, the plaintiff suffered financial loss.
The plaintiff brought an action before the Krajský soud v Ostravě (hereinafter ‘the Court of First Instance’) requesting payment of the difference between her profit and the profit she would have obtained if the order had been executed without delay. The plaintiff considered itself as ‘consumer’ within the meaning of Article 17(1) of the Brussels I Regulation (recast) (1) and followed Article 18 of the Regulation under which a consumer may bring proceedings in the courts for the place where the consumer is domiciled. In the view of the Court of First Instance, the plaintiff was not a ‘consumer’ since she had not concluded the contract at issue in order to meet private needs, had the knowledge and expertise essential for entering into such type of contract, acted in the aim of obtaining profit and was warned of the relevant risks. Moreover, there was a jurisdiction clause in favour of the Cypriot courts contained in the ‘Terms of Business’, which had been accepted by the plaintiff. The Court of First Instance declared a lack of jurisdiction of the Czech courts and terminated the proceedings.
The Vrchní soud v Olomouci (hereinafter ‘the Court of Appeal’) confirmed the first instance conclusion, although the plaintiff argued that it acted as a ‘retail client’ as defined by Directive 2014/65/EU (2) and therefore must be understood as a consumer.
The plaintiff brought a cassation appeal to the Supreme Court, which decided to request a preliminary ruling of the Court of Justice of the European Union (CJEU) on the question of whether ‘a person […] who engages in trade on […] the international currency exchange market, on the basis of actively placing his own orders, although through a third party who is professionally engaged in that trade, must be regarded as a consumer under [Article 17(1) of the Brussels I Regulation (recast)]’. The CJEU provided its interpretation in Case C-208/2018 (3) according to which such person ‘must be classified as a “consumer” within the meaning of that provision if the conclusion of that contract does not fall within the scope of that person’s professional activity, which it is for the national court to ascertain. For the purpose of that classification, on the one hand, factors such as the value of transactions carried out under contracts such as financial contracts for differences, the extent of the risks of financial loss associated with the conclusion of such contracts, any knowledge or expertise that person has in the field of financial instruments or his or her active conduct in the context of such transactions are, as such, in principle irrelevant.’ In consideration of the guidance of the CJEU, it would be irrelevant also whether the person is ‘retail client’ within the meaning of Directive 2014/65/EU or not.
Based on this interpretation, the Supreme Court recognised the plaintiff as a consumer since the contract in question was not concluded within her professional activities and the arguments used by the lower courts were irrelevant to this conclusion.
The Supreme Court annulled both decisions of the lower courts and referred the case back to the Court of First Instance, which must reassess the international jurisdiction of the Czech courts.
(1) 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.
(2) Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU Text with EEA relevance.
(3) Judgment of the Court of 3 October 2019, Jana Petruchová v FIBO Group Holdings Limited, C-208/18, ECLI:EU:C:2019:825.