Opinion of the Advocate General — ECLI:EU:C:2014:2135
Date: 2014-09-03
Language of the case: German
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Austria

summary of the facts demonstrates, which it is nevertheless for that court to verify, that there is no contract between Barclays Bank and Mr Kolassa, for the latter is not the bearer of the bonds referred to in paragraph 14 of this judgment, those bonds being held by direktanlage.at as covering assets in its own name. By contrast, also according to the referring court, Mr Kolassa could request the delivery of the certificates from the corresponding share of the covering assets, it being understood that the certificates could not be transferred in to his name. 27 According to Mr Kolassa, in such circumstances, the aim of consumer protection requires the adoption of an economic approach and the finding that a contract has indeed been concluded, within the meaning of Article 15(1) of Regulation No 44/2001, between himself and Barclays Bank, for the role played by direktanlage.at was that of intermediary. 28 In that respect, it should be recalled that Article 15(1) of Regulation No 44/2001 constitutes a derogation both from the general rule of jurisdiction laid down in Article 2(1) of the regulation, which confers jurisdiction upon the courts of the Member State in which the defendant is domiciled, and from the rule of special jurisdiction for contracts, set out in Article 5(1) of the regulation, under which jurisdiction lies with the courts for the place of performance of the obligation in question. Thus, Article 15(1) must necessarily be interpreted strictly (see judgment in Česká spořitelna, EU:C:2013:165, paragraph 26 and case-law cited). 29 In addition, the condition that there must be a contract concluded between the consumer and the professional concerned makes it possible to ensure that the attribution of jurisdiction is predictable, which is one of the aims of Regulation No 44/2001, as is apparent from recital 11 in the preamble thereto. 30 Consequently, it must be held that the requirement of the conclusion of a contract with the professional concerned himself does not lend itself to an interpretation to the effect that such a requirement is satisfied when there is a chain of contracts through which certain rights and obligations of the professional in question are transferred to the consumer. 31 That finding is supported by a reading of Article 15 of Regulation No 44/2001 in conjunction with Article 16 thereof. 32 The rules on jurisdiction laid down, as regards consumer contracts, in Article 16(1) of the regulation apply, in accordance with the wording of that article, only to an action brought by a consumer against the other party to the contract, which necessarily implies that there be a contract concluded by the consumer with the professional concerned. 33 The Court has, admittedly, held that the concept of ‘other party to the contract’ laid down in Article 16(1) of Regulation No 44/2001 must be interpreted as meaning that it also covers the contracting partner of the operator with which the consumer concluded that contract (judgment in Maletic, EU:C:2013:735, paragraph 32). However, that interpretation rested on specific circumstances in which the consumer was from the outset contractually linked, inseparably, to two contracting partners. In addition, the consequence of excluding the contracting partner established in the consumer’s Member State from the scope of Article 16 would have been that the court hearing the case against the two contracting partners jointly would have had jurisdiction only in respect of the operator established in another Member State. 34 Such an interpretation cannot be applied to the circumstances of the case in the main proceedings, in which there is absolutely no conclusion of any contract with the professional concerned. 35 It follows from the foregoing considerations that Article 15(1) of Regulation No 44/2001 must be interpreted as meaning that, in circumstances such as those of the case in the main proceedings, an applicant who, as a consumer, has acquired a bearer bond from a third party professional, without a contract having been concluded between that consumer and the issuer of the bond, which it is for the national court to verify, may not invoke jurisdiction under that provision for the purposes of an action brought against the issuer of the bond on the basis of the bond conditions, breach of the information and control obligations and liability for the prospectus. Question 2 36 By Question 2, the referring court asks, in essence, whether Article 5(1)(a) of Regulation No 44/2001 must be interpreted as meaning that for the purposes of an action brought against the issuer of a bearer bond and based on the bond conditions, breach of the information and control obligations and prospectus liability, an applicant who has acquired that bond from a third party may invoke jurisdiction under that provision. 37 In order for an answer to be given to that question, it must be recalled at the outset that the concept of ‘matters relating to a contract’, within the meaning of Article 5(1) of Regulation No 44/2001, cannot be taken to refer to the classification under the relevant national law of the legal relationship in question before the national court. That concept must, on the contrary, be interpreted independently, regard being had to the general scheme and objectives of the regulation, in order to ensure that it is applied uniformly in all the Member States (judgments in Handte, C‑26/91, EU:C:1992:268, paragraph 10, and Česká spořitelna, EU:C:2013:165, paragraph 45). 38 In contrast to the requirement laid down in Article 15(1) of Regulation No 44/2001, the conclusion of a contract is not a condition for the application of Article 5(1) of that regulation, so that the exclusion of jurisdiction under the first provision is not necessarily with prejudice to the applicability of the second. 39 However, although Article 5(1)(a) of Regulation No 44/2001 does not require the conclusion of a contract, it is nevertheless essential, for that provision to apply, that an obligation be identified, since the jurisdiction of the national court under that provision is determined by the place of performance of the obligation in question. Thus, the application of the rule of special jurisdiction provided for matters relating to a contract in Article 5(1)(a) presupposes the establishment of a legal obligation freely consented to by one person towards another and on which the claimant’s action is based (see the judgment in Česká spořitelna, EU:C:2013:165, paragraphs 46 and 47). 40 In that regard, it is clear from the summary of the facts set out by the referring court that such a legal obligation freely consented to by Barclays Bank with respect to Mr Kolassa is lacking on the facts of the case in the main proceedings, even if, under the national law applicable, Barclays Bank has certain obligations towards Mr Kolassa. 41 It follows from the foregoing considerations that Article 5(1)(a) of Regulation No 44/2001 must be interpreted as meaning that, in circumstances such as those of the case in the main proceedings, an applicant who has acquired a bearer bond from a third party, without the issuer thereof having freely assumed an obligation towards that applicant, which it is for the referring court to verify, may not invoke jurisdiction under that provision for the purposes of an action brought against the issuer and based on the bond conditions, breach of the information and control obligations and prospectus liability. Question 3 42 By Question 3, the referring court asks, in essence, whether Article 5(3) of Regulation No 44/2001 must be interpreted as applying to an action seeking to put in issue the liability of the issuer of a certificate on the basis of the prospectus relating to it and of the breach of other legal information obligations incumbent on the issuer, thus allowing jurisdiction to be established for the courts where the applicant is domiciled on the basis that that is the place where the harmful event occurred or may occur. 43 In that regard, it should be recalled at the outset that Article 5(3) of Regulation No 44/2001 must be interpreted independently and strictly (see, to that effect, judgment in Coty Germany, C‑360/12, EU:C:2014:1318, paragraphs 43 to 45). 44 The fact remains that the concept of ‘matters relating to tort, delict or quasi-delict’ within the meaning of Article 5(3) of Regulation No 44/2001 covers all actions which seek to establish the liability of a defendant and do not concern ‘matters relating to a contract’ within the meaning of Article 5(1)(a) of that regulation (see judgment in Brogsitter, C‑548/12, EU:C:2014:148, paragraph 20). Thus, it must be assessed whether actions for damages brought against an issuer on the basis of the prospectus and for breaches of other legal information obligations towards investors are matters of delict or quasi-delict in as much as they are not covered by the concept of matters relating to a contract as defined at paragraph 39 of this judgment. 45 As regards the application of Article 5(3) of Regulation No 44/2001 in circumstances such as those of the case in the main proceedings, it must be recalled that the expression ‘place where the harmful event occurred or may occur’ in that provision is intended to cover both the place where the damage occurred and the place of the event giving rise to it, so that the defendant may be sued, at the option of the applicant, in the courts for either of those places (judgment in Coty Germany, EU:C:2014:1318, paragraph 46). 46 In that connection, according to settled case-law, the rule of special jurisdiction laid down in Article 5(3) of Regulation No 44/2001 is based on the existence of a particularly close linking factor between the dispute and the courts of the place where the harmful event occurred or may occur, which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings (judgment in Coty Germany, EU:C:2014:1318, paragraph 47). 47 Given that identification of one of the linking factors recognised by the case-law set out in paragraph 45 above must make it possible to establish the jurisdiction of the court objectively best placed to determine whether the elements that constitute liability do in fact exist, it follows that only the court within whose jurisdiction the relevant linking factor is situated may validly be seised (judgment in Coty Germany, EU:C:2014:1318, paragraph 48). 48 It should be recalled that the Court has held that the phrase ‘place where the harmful event occurred’ does not refer to the applicant’s place of domicile by reason only of the fact that he has suffered financial damage there resulting from the loss of part of his assets which arose and was incurred in another Member State (judgment in Kronhofer, C‑168/02, EU:C:2004:364, paragraph 21). 49 Therefore, the mere fact that the applicant has suffered financial consequences does not justify the attribution of jurisdiction to the courts of the applicant’s domicile if, as was the situation in the case giving rise to the judgment in Kronhofer (EU:C:2004:364), both the events causing loss and the loss itself occurred in the territory of another Member State (see, to that effect, judgment in Kronhofer, EU:C:2004:364, paragraph 20). 50 By contrast, such an attribution of jurisdiction is justified if the applicant’s domicile is in fact the place in which the events giving rise to the loss took place or the loss occurred. 51 In that regard, it is apparent from the decision for reference that, first, the certificates’ loss of value was due, not to the vagaries of the market, but to the management of the funds in which the money from the issue of those certificates had been invested, preventing, at the end of the term, an increase in its value. Second, the actions or omissions alleged against Barclays Bank with respect to its legal information obligations took place before the investment made by Mr Kolassa and were, in his view, decisive for that investment. 52 On the assumption that the actions and omissions of Barclays Bank constituted a necessary precondition for the loss suffered by Mr Kolassa, which is sufficient for Article 5(3) of Regulation No 44/2001 to apply (see, to that effect, judgment in DFDS Torline, C‑18/02, EU:C:2004:74, paragraph 34), it is also necessary, for that purpose, to ascertain to what extent the facts of the case in the main proceedings lead to the conclusion that the place in which the events causing the loss took place or in which the loss occurred was where the applicant is domiciled. 53 As regards the events giving rise to the loss claimed, namely, the alleged breach by Barclays Bank of the legal obligations relating to the prospectus and information for investors, it should be pointed out that the acts and omissions that might constitute such a breach cannot be considered to have taken place where the investor who claims to have suffered loss is domiciled, given that there is no information in the case-file to show that the decisions regarding the arrangements for the investments proposed by Barclays Bank and the contents of the relevant prospectuses were taken in the Member State in which the investor is domiciled or that those prospectuses were originally drafted and distributed anywhere other than the Member State in which Barclays Bank has its seat. 54 As regards, by contrast, the place where the loss occurred, it must be held that, in circumstances such as those summarised at paragraph 51 of this judgment, the loss occurred in the place where the investor suffered it. 55 The courts where the applicant is domiciled have jurisdiction, on the basis of the place where the loss occurred, to hear and determine such an action, in particular when that loss occurred itself directly in the applicant’s bank account held with a bank established within the area of jurisdiction of those courts. 56 The place where the loss occurred thus identified meets, in circumstances such as those referred to in paragraph 51 of this judgment, the objective of Regulation No 44/2001 of strengthening the legal protection of persons established in the European Union, by enabling the applicant to identify easily the court in which he may sue and the defendant reasonably to foresee in which court he may be sued (see, to that effect, judgment in Kronhofer, EU:C:2004:364, paragraph 20), given that the issuer of a certificate who does not comply with his legal obligations in respect of the prospectus must, when he decides to notify the prospectus relating to that certificate in other Member States, anticipate that inadequately informed operators, domiciled in those Member States, might invest in that certificate and suffer loss. 57 Having regard to the foregoing considerations, the answer to Question 3 is that Article 5(3) of Regulation No 44/2001 must be interpreted as applying to an action seeking to put in issue the liability of the issuer of a certificate on the basis of the prospectus relating to it and of breach of other legal information obligations binding on the issuer, in so far as that liability is not based on a matter relating to a contract, within the meaning of Article 5(1) of the regulation. Under Article 5(3) of Regulation No 44/2001, the courts where the applicant is domiciled have jurisdiction, on the basis of the place where the loss occurred, to hear and determine such an action, particularly when the damage alleged occurred directly in the applicant’s bank account held with a bank established within the area of jurisdiction of those courts. Question 4 58 By Question 4, the referring court asks, in essence, whether it is necessary, in the context of the determination of international jurisdiction under Regulation No 44/2001, to conduct a comprehensive taking of evidence in relation to disputed facts that are of relevance both for the question of jurisdiction and for the existence of the claim or whether it is, instead, to be considered that the allegations of the applicant in the main proceedings alone are correct for the purposes of the decision on jurisdiction. 59 It is common ground that Regulation No 44/2001 does not explicitly define the extent of the verification obligations to which national courts are subject in the course of determining their international jurisdiction. 60 Although that is an aspect of national procedural law that the regulation is not intended to unify (see, to that effect, judgment in G, C‑292/10, EU:C:2012:142, paragraph 44), the application of the relevant national laws must not, nevertheless, impair the effectiveness of Regulation No 44/2001 (see the judgment in Shevill and Others, C‑68/93, EU:C:1995:61, paragraph 36 and case-law cited). 61 In that regard, the Court has held that the aim of legal certainty requires the national court seised to be able readily to decide whether it has jurisdiction, without having to consider the substance of the case (see the judgment in Benincasa, C‑269/95, EU:C:1997:337, paragraph 27). As regards the application of that requirement in the context of the particular jurisdiction at issue in the main proceedings, the Court has, on the one hand, held that a court hearing a contractual dispute may examine, even of its own motion, the essential preconditions for its jurisdiction, having regard to conclusive and relevant evidence adduced by the party concerned establishing whether in fact the contract exists (judgment in Effer, 38/81, EU:C:1982:79, paragraph 7). 62 On the other hand, in relation specifically to Article 5(3) of Regulation No 44/2001, the Court has held that at the stage at which jurisdiction is determined, the court seised does not examine either the admissibility or the substance of the application in the light of national law, but identifies only the points of connection with the State in which that court is sitting that support its claim to jurisdiction under that provision (judgment in Folien Fischer and Fofitec, C‑133/11, EU:C:2012:664, paragraph 50). Thus, the court seised may regard as established, solely for the purpose of ascertaining whether it has jurisdiction under that provision, the applicant’s assertions as regards the conditions for liability in tort, delict or quasi-delict (judgment in Hi Hotel HCF, C‑387/12, EU:C:2014:215, paragraph 20). 63 It must be observed that an obligation to conduct, at that early stage, a comprehensive taking of evidence as regards the facts relevant both to jurisdiction and substance risks prejudicing the assessment of the substance. 64 Although the national court seised is not, therefore, obliged, if the defendant contests the applicant’s allegations, to conduct a comprehensive taking of evidence at the stage of determining jurisdiction, it must be pointed out that both the objective of the sound administration of justice, which underlies Regulation No 44/2001, and respect for the independence of the national court in the exercise of its functions require the national court seised to be able to examine its international jurisdiction in the light of all the information available to it, including, where appropriate, the defendant’s allegations. 65 Having regard to the foregoing, the answer to Question 4 is that, in the context of the determination of international jurisdiction under Regulation No 44/2001, it is not necessary to conduct a comprehensive taking of evidence in relation to disputed facts that are relevant both to the question of jurisdiction and to the existence of the claim. It is, however, permissible for the court seised to examine its international jurisdiction in the light of all the information available to it, including, where appropriate, the allegations made by the defendant. Costs 66 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Fourth Chamber) hereby rules: 1. Article 15(1) 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, in circumstances such as those of the case in the main proceedings, an applicant who, as a consumer, has acquired a bearer bond from a third party professional, without a contract having been concluded between that consumer and the issuer of the bond, which it is for the national court to verify, may not invoke jurisdiction under that provision for the purposes of an action brought against the issuer of the bond on the basis of the bond conditions, breach of the information and control obligations and liability for the prospectus. 2. Article 5(1)(a) of Regulation No 44/2001 must be interpreted as meaning that, in circumstances such as those of the case in the main proceedings, an applicant who has acquired a bearer bond from a third party, without the issuer thereof having freely assumed an obligation towards that applicant, which it is for the referring court to verify, may not invoke jurisdiction under that provision for the purposes of an action brought against the issuer and based on the bond conditions, breach of the information and control obligations and prospectus liability. 3. Article 5(3) of Regulation No 44/2001 must be interpreted as applying to an action seeking to put in issue the liability of the issuer of a certificate on the basis of the prospectus relating to it and of breach of other legal information obligations binding on the issuer, in so far as that liability is not based on a matter relating to a contract, within the meaning of Article 5(1) of the regulation. Under Article 5(3) of Regulation No 44/2001, the courts where the applicant is domiciled have jurisdiction, on the basis of the place where the loss occurred, to hear and determine such an action, particularly when the damage alleged occurred directly in the applicant’s bank account held with a bank established within the area of jurisdiction of those courts. 4. In the context of the determination of international jurisdiction under Regulation No 44/2001, it is not necessary to conduct a comprehensive taking of evidence in relation to disputed facts that are relevant both to the question of jurisdiction and to the existence of the claim. It is, however, permissible for the court seised to examine its international jurisdiction in the light of all the information available to it, including, where appropriate, the allegations made by the defendant. [Signatures] * Language of the case: German.