Corte Suprema di Cassazione; 2017-09-29; BIPIELLE BANK (SUISSE) c. S.R.; Cass. civ. Sez. Unite, Sent., 29-09-2017, n. 22857
Decision by national courts in the field of European Union law — ECLI:IT:CASS:2017:S22857
Date: 2017-09-29
Subject matter: Lugano Convention
Origin: Italy

82017IT0929(51)_ENG_SUMJURE
JURE summary
JURE summary
In this case, an Italian investor (hereinafter ‘the plaintiff’) sued a financial intermediary domiciled in Italy (hereinafter ‘the defendant 1’) and a bank domiciled in Switzerland (hereinafter ‘the defendant 2’). The plaintiff entered into an investment contract with defendant 2 and sought either compensation for damages he had suffered due to the contract or, alternatively, a declaration of the nullity of the contract.
The Tribunale di Avellino (hereinafter ‘the Court of First Instance’) declared a lack of jurisdiction to hear the case, and this was appealed by the plaintiff.
The Corte d’appello di Napoli (hereinafter ‘the Court of Appeal’) annulled the decision of first instance, citing jurisdiction over consumer contracts as set out in Article 13 of the Lugano Convention (1), as the relationship between the parties was considered to be a consumer contract for the supply of financial services. In such a case, by virtue of Article 14 of the convention, a ‘consumer may bring proceedings against the other party to a contract either in the courts of the Contracting State in which that party is domiciled or in the courts of the Contracting State in which he is himself domiciled’. This provision may be departed from only by an agreement pursuant to Article 15. As there was no such agreement in this case, the jurisdiction belongs to the Court of First Instance, as it is the court of the plaintiff’s domicile.
Defendant 2 filed a cassation appeal to the Corte Suprema di Cassazione (hereinafter ‘the Supreme Court’), alleging that the investment contract does not fall within the meaning of a consumer contract as defined by Article 13 of the Lugano Convention. The contract shall be assessed as a consumer contract if, according to Article 13(a) of the convention, ‘in the State of the consumer’s domicile the conclusion of the contract was preceded by a specific invitation addressed to him or by advertising and … the consumer took in that State the steps necessary for the conclusion of the contract’. However, all of the steps leading to the conclusion of the contract were taken in Switzerland, where defendant 2 pursues its activities. The contract concerned a high-risk investment that could potentially end in losses and the plaintiff had been made aware of all risks related to these investments beforehand.
The Supreme Court based its decision on Article 6(1) of the Lugano Convention, according to which ‘a person domiciled in a Contracting State may also be sued … where he is one of a number of defendants, in the courts for the place where any one of them is domiciled’. As defendant 1 is undeniably domiciled in Italy and the claims of the plaintiff against both defendants had the same merits, the jurisdiction of the Italian courts was established in accordance with cited Article 6(1).
Therefore, the Supreme Court dismissed the cassation appeal.
(1) Convention on jurisdiction and the enforcement of judgments in civil and commercial matters - Done at Lugano on 16 September 1988.