Opinion of the Advocate General — ECLI:EU:C:2020:1056
Date: 2020-12-17
Language of the case: Dutch
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Netherlands

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
25 September 2019 
Referring court: 
Hoge Raad der Nederlanden (Netherlands) 
Date of the decision to refer: 
20 September 2019 
Appellant: 
Vereniging van Effectenbezitters 
Respondent: 
BP plc 
  
Subject matter of the action in the main proceedings 
The main proceedings concern a dispute between the Vereniging van 
Effectenbezitters (Association of Securities Holders; ‘VEB’), a Dutch association 
which has as its statutory purpose the representation of the interests of securities 
holders, and BP plc (‘BP’), an oil and gas company operating worldwide, centring 
on the damage suffered by BP shareholders — in the form of a decrease in the 
value of their shares — as a result of BP’s allegedly unlawful conduct.  
Subject matter and legal basis of the request for a preliminary ruling 
The present application under Article 267 TFEU concerns the international 
jurisdiction of the Netherlands courts. More specifically, the question is whether 
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) (‘the Brussels Ia Regulation’) 
must be interpreted as meaning that the direct occurrence of purely financial 
damage to a Dutch investment account can constitute a sufficient connecting 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-709/19 
 
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factor to form the basis for the international jurisdiction of courts in the 
Netherlands.  
Questions referred 
1.(a)  Should Article 7(2) of [the Brussels Ia Regulation] be interpreted as 
meaning that the direct occurrence of purely financial damage to an investment 
account in the Netherlands or to an investment account of a bank and/or 
investment firm established in the Netherlands, damage which is the result of 
investment decisions influenced by globally distributed but incorrect, incomplete 
and misleading information from an international listed company, constitutes a 
sufficient connecting factor for the international jurisdiction of the Netherlands 
courts by virtue of the location of the occurrence of the damage (‘Erfolgsort’)?  
(b) If not, are additional circumstances required to justify the jurisdiction of the 
Netherlands courts and what are those circumstances? Are the additional 
circumstances referred to [in paragraph 7 below] sufficient to found the 
jurisdiction of the Netherlands courts?  
2. Would the answer to Question 1 be different in the case of a claim brought 
under Article 3:305a of the BW (Burgerlijk Wetboek: Netherlands Civil Code) by 
an association the purpose of which is to defend, in its own right, the collective 
interests of investors who have suffered damage as referred to in Question 1, 
which means, among other things, that neither the places of domicile of the 
aforementioned investors, nor the special circumstances of individual purchase 
transactions or of individual decisions not to sell shares which were already held, 
have been established?  
3. If courts in the Netherlands have jurisdiction on the basis of Article 7(2) of 
the Brussels Ia Regulation to hear the claim brought under Article 3:305a of the 
BW, do those courts then, on the basis of Article 7(2) of the Brussels Ia 
Regulation, also have international and internal territorial jurisdiction to hear all 
subsequent individual claims for compensation brought by investors who have 
suffered damage as referred to in Question 1?  
4. If courts in the Netherlands as referred to in Question 3 above have 
international, but not internal, territorial jurisdiction to hear all individual claims 
for compensation brought by investors who have suffered damage as referred to in 
Question 1, will the internal territorial jurisdiction be determined on the basis of 
the place of domicile of the misled investor, the place of establishment of the bank 
in which that investor holds his or her personal bank account or the place of 
establishment of the bank in which the investment account is held, or on the basis 
of some other connecting factor?  
VERENIGING VAN EFFECTENBEZITTERS 
 
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Provisions of EU law cited 
Articles 4 and 7 of the Brussel Ia Regulation 
Provisions of national law cited 
Article 3:305a of the Burgerlijk Wetboek (‘BW’) 
Brief summary of the facts and the procedure in the main proceedings 
1 On 20 April 2010 an explosion occurred on the oil drilling platform Deepwater 
Horizon, located in the Gulf of Mexico, leased by BP, resulting in deaths and 
injuries. Damage to the environment also occurred.  
2 In 2015 VEB brought proceedings against BP before the Rechtbank Amsterdam 
(District Court, Amsterdam) and instituted a collective action under Article 3:305a 
of the BW on behalf of all persons who, in the period from 16 January 2007 to 
25 June 2010, had bought, held or sold BP shares through an investment account 
in the Netherlands or through an investment account of a bank and/or investment 
firm established in the Netherlands (‘BP shareholders’).  
In those proceedings VEB sought a ruling from the Rechtbank: 
(i) that the courts in the Netherlands have international jurisdiction to hear the 
claims for compensation brought by BP shareholders; 
(ii) that the Rechtbank Amsterdam has territorial jurisdiction in respect of those 
claims; 
(iii) that Netherlands law is applicable to the claims for compensation; 
(iv) that BP made incorrect, incomplete and misleading statements to BP 
shareholders about (i) its safety and maintenance programmes prior to the oil 
spill on 20 April 2010, and/or (ii) the extent of that oil spill, and/or (iii) the 
role and responsibility of BP in regard to that oil spill;  
(v) that, by its conduct as described in (iv) above, BP acted unlawfully vis-à-vis 
the BP shareholders; 
(vi) that, had it not been for the unlawful conduct on the part of BP, the purchase 
or sale of BP shares by the BP shareholders would have been effected at a 
more favourable market price, or not at all;  
(vii) that there is a conditio sine qua non link between BP’s unlawful conduct and 
the purchase/sale (conditions) resulting therefrom, and the exchange-rate 
loss suffered by the BP shareholders in the period between 16 January 2007 
and 25 June 2010 inclusive.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-709/19 
 
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3 BP has disputed the jurisdiction of the Netherlands courts and argued that those 
courts cannot derive international jurisdiction from the Brussels Ia Regulation. 
The Rechtbank Amsterdam declared that it lacked jurisdiction to hear VEB’s 
claims. The Gerechtshof Amsterdam (Court of Appeal, Amsterdam) upheld the 
Rechtbank’s judgment on appeal. VEB has appealed in cassation against that 
judgment of the Gerechtshof to the referring court.  
Main submissions of the parties to the main proceedings 
4 It is common ground in the proceedings in cassation that VEB’s claims concern 
matters relating to tort, delict or quasi-delict as referred to in Article 7(2) of the 
Brussels Ia Regulation, under which jurisdiction lies with the courts of the place 
where the harmful event occurred or may occur. The plea raises the question 
whether, under Article 7(2) of the Brussels Ia Regulation, the courts of the 
Netherlands, as the courts of the place where the damage occurred, have 
jurisdiction to hear VEB’s claims.  
5 VEB and BP disagree as to the relationship between the judgment of 28 January 
2015, Kolassa, C-375/13, EU:C:2015:37 (‘the Kolassa judgment’) and the 
judgment of 16 June 2016, Universal Music International Holding, C-12/15, 
EU:C:2016:449 (‘the Universal Music judgment’) and the consequences thereof 
for the present case.  
6 VEB takes the stance, inter alia, that the circumstances of the present proceedings 
are comparable to those of the Kolassa judgment and the judgment of 
12 September 2018, Löber, C-304/17, EU:C:2018:701 (‘the Löber judgment’). It 
argues in this regard that the decrease in the value of the shares was not due to the 
fluctuations in the financial markets, but to the provision of incorrect, incomplete 
and misleading information by BP about the oil spill referred to in paragraph 1 
above, whereby BP failed to fulfil its legal information obligations. As a result, 
the shareholders took investment decisions that they would not have taken if they 
had been correctly and fully informed. When the correct information became 
known, the value of their shares decreased and they suffered damage as a result. 
Since the shares, or at least the claims of the shareholders in respect of those 
shares, were administered (credited and debited) and were located in an 
investment account in the Netherlands or in an investment account of a bank 
and/or investment firm established in the Netherlands, that damage, taking the 
form of a decrease in the value of the shares as a result of BP’s unlawful conduct, 
manifested itself directly in the Netherlands in that investment account. That is 
why the courts of the Netherlands have jurisdiction to hear VEB’s claims. In 
addition, that jurisdiction of the courts in the Netherlands does not require any 
(other) special or additional circumstances. 
7 If special or additional circumstances as referred to in the Universal Music 
judgment must nevertheless be brought to bear, the following circumstances may, 
according to VEB, be accorded secondary importance. First, BP focuses on a 
VERENIGING VAN EFFECTENBEZITTERS 
 
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global investment public, including Dutch investors. VEB represents the interests 
of a large number of investors, the vast majority of whom have their place of 
domicile in the Netherlands. Second, BP has reached a settlement with other 
shareholders in the United States of America. That settlement has not been offered 
to the investors whose interests are represented by VEB and no other similar 
proceedings are being conducted in Europe. Third, the shareholders for whom 
VEB is acting include consumers to whom the Brussels Ia Regulation affords 
special legal protection. Finally, importance should be attached to the fact that the 
claims brought by VEB under Article 3:305a of the BW were filed in a collective 
action.  
8 BP has taken the stance, inter alia, that the mere fact that in the Kolassa judgment 
the damage occurred directly to a Kolassa bank account in Austria was not 
sufficient to establish the jurisdiction of the Austrian courts. There were further 
reasons for establishing a connection with Austria. Barclays had published a 
prospectus in Austria and the certificates were sold (on) by an Austrian bank. BP 
refers in this regard to paragraph 37 of the Universal Music judgment. This shows 
that the decision in the Kolassa judgment was related to circumstances which, 
taken together, sought to confer jurisdiction on the courts of the applicant’s place 
of domicile. On the basis of the foregoing, BP argues that purely financial damage 
that occurs directly to a bank account cannot, without additional circumstances, be 
considered a relevant connecting factor under Article 7(2) of the Brussels Ia 
Regulation. That also applies where there is no danger of the injured party 
subsequently manipulating the Erfolgsort by choosing a bank account at a location 
that suits him. In the absence of additional circumstances, the courts of the place 
where the bank account is held therefore do not have jurisdiction. According to 
BP, the collective nature of that procedure does not alter the foregoing. 
Brief summary of the reasons for the referral 
9 In the opinion of the Hoge Raad (Supreme Court of the Netherlands), those 
arguments raise questions of interpretation in relation to the Brussels Ia 
Regulation, and there may be reasonable doubt as to the correct answer. For those 
reasons, the Hoge Raad has referred the questions set out above to the CJEU for a 
preliminary ruling.  
10 By way of clarification of the first question referred for a preliminary ruling, the 
Hoge Raad takes the view that the Kolassa judgment, the Löber judgment and the 
present case all involve purely financial damage which occurred directly to a bank 
account or investment account, where that purely financial damage is the result of 
a decrease in the value of the securities held as credit in that bank account or 
investment account. That situation differs from the situation in the Universal 
Music judgment. In the latter case, the purely financial damage to the bank 
account was the result of a payment made from that bank account to compensate 
damage suffered by victims abroad. However, unlike the case of a decrease in the 
value of shares held as a credit in a bank account or investment account, in that 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-709/19 
 
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situation the injured party had an influence on the decrease in the credit balance in 
his or her bank account because he or she was free to choose to make a payment 
from that bank account. A difference between the facts in the Kolassa judgment 
and the Löber judgment and the facts in the present case is that the claim in the 
present case is not based on misleading information in a prospectus distributed in 
the Netherlands. According to VEB’s submissions, which were not rejected by the 
Gerechtshof and which must therefore presumably serve as the starting point in 
cassation, BP allegedly made public incorrect, incomplete and misleading 
information through press releases, reports published on its website, annual 
accounts and annual reports as well as public statements made by directors. In its 
dubious provision of information, BP did not address Dutch investors separately 
or specifically. In addition, this does not appear to relate to the sale and purchase 
of financial products on the secondary market in the Netherlands, but to the 
purchase of ordinary BP shares, listed on the London or Frankfurt stock exchange, 
through an investment account in the Netherlands or through an investment 
account of a bank and/or investment firm established in the Netherlands. The 
unforeseeability of the forum for the defendant — which could be the case if the 
place in which a bank or investment account is held were to be classified as the 
Erfolgsort — is not in all cases an obstacle to the granting of jurisdiction to the 
court of the Erfolgsort. In its judgment of 25 October 2011, eDate Advertising and 
Others, C-509/09 and C-161/10, EU:C:2011:685, paragraph 51, the CJEU 
conferred jurisdiction on, inter alia, the courts in each Member State within the 
territory of which content placed online is or has been accessible, at least in so far 
as it concerns jurisdiction in respect of the damage caused in the territory of the 
Member State of the court seised. The question arises as to whether there are 
grounds for a comparable jurisdictional rule for claims aimed at recovering 
shareholders’ losses resulting from incorrect, incomplete or misleading 
information that has been made public by international listed companies.  
11 By way of clarification of the second question referred for a preliminary ruling, 
the Hoge Raad considers that the fact that the present case concerns a collective 
action under Article 3:305a of the BW may give rise to (additional) problems in 
locating the Erfolgsort. Because the collective action seeks to protect similar 
interests, inferences are not drawn from the individual circumstances of the 
victims whose interests are involved in the collective action. The details of the 
individual (purchase) transactions are not dealt with in the collective action, and 
neither are the individual decisions not to sell shares already held. The question is 
whether, and, if so, how, additional specific circumstances, if required, should be 
established in such a case. In the judgment of 21 May 2015, CDC Hydrogen 
Peroxide, C-352/13, EU:C:2015:335, paragraphs 35, 36 and 56, the CJEU ruled 
that the transfer of claims by the initial creditor cannot, by itself, have an impact 
on the determination of the court having jurisdiction under the (the precursor of) 
Article 7(2) of the Brussels Ia Regulation and that the harmful event must be 
assessed for each claim for damages independently of any subsequent assignment 
or consolidation. The question is whether such strict rules also apply to the 
location of the Erfolgsort in a collective action under Article 3:305a of the BW, 
since such a procedure does not involve assignment or consolidation of claims, 
VERENIGING VAN EFFECTENBEZITTERS 
 
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but merely relates to a collective interest and those rules would undermine the 
effectiveness of the instrument of Article 3:305a of the BW.  
12 By way of clarification of the third question referred for a preliminary ruling, the 
Hoge Raad considers that, if the Netherlands courts do have jurisdiction and if 
they were to declare that BP acted unlawfully in respect of the BP shareholders, 
those shareholders would, on that basis, be able to bring an action for damages on 
an individual basis in fresh proceedings. If that happens, it is important to 
determine whether such claims could be brought before the court that had 
jurisdiction in the collective action. That question could arise if the place of 
domicile of the BP shareholder or the location in the Netherlands of his or her 
bank and/or investment account is outside the jurisdiction of the court seised. In 
that regard, reference is also made to Question 4 and the explanatory notes to that 
question set out below.  
13 By way of clarification of the fourth question referred for a preliminary ruling, the 
Hoge Raad states that in the Löber judgment, paragraph 31, the CJEU refers to the 
attribution of jurisdiction to the Austrian courts. The special jurisdictional rules of 
Article 7 of the Brussels Ia Regulation govern not only international jurisdiction, 
but also internal territorial jurisdiction. The Löber judgment left open the question 
of the bank account to which the damage occurred directly. On the one hand, it 
appears to follow from the Löber judgment, paragraph 32, that the use of the term 
‘bank accounts’ does not make a relevant distinction between a ‘personal’ bank 
account and investment accounts. It could be deduced from this that both accounts 
could be eligible. On the other hand, it appears from the Opinion of Advocate 
General Bobek in that case, point 13, that Ms Löber held her personal bank 
account in Vienna, which was also her place of domicile, and that the investment 
accounts were held in Salzburg and Graz. Apparently, in the Löber judgment, in 
order for the court in Vienna to be held to have jurisdiction, it was sufficient that 
Vienna, apart from being Ms Löber’s place of domicile, was also the place of 
establishment of the bank in which she held her bank account. This raises the 
question of which factor(s) determine(s) internal territorial jurisdiction. Is it the 
place of domicile of the misled investor, the place of establishment of the bank in 
which that investor holds his or her personal bank account or the place of 
establishment of the bank in which the investment account is held, or some other 
connecting factor?