23.

Having regard to the arguments of the parties and the considerable number of parallel proceedings in progress, the Handelsgericht Wien considered that it was necessary and appropriate to stay the proceedings and to refer the following questions to the Court: ‘(1) (a) As regards Article 15(1) of Regulation [No 44/2001], is the wording “in matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession” to be interpreted as meaning that: (i) an applicant who, as a consumer, has acquired a bearer bond on the secondary market and now claims rights against the issuer of the bond on the basis of the bond terms and conditions, of breach of information and control obligations and of the issuer’s prospectus liability, may invoke the ground of jurisdiction under that provision when, as a result of purchasing the security from a third party, he has entered into the contractual relationship between the issuer and the original subscriber of the bond? (ii) If Question 1(a)(i) is answered in the affirmative, the applicant may invoke the jurisdiction under Article 15 of that regulation when the third party from whom he purchased the bearer bond himself acquired it for a purpose which can be regarded as being within his trade or profession, that is to say, that the applicant therefore took over the bond relationship from a person who is not a consumer; and? (iii) if Questions 1(a)(i) and (ii) are answered in the affirmative, the applicant consumer may also invoke the jurisdiction provided for by Article 15 of the Regulation No 44/2001 when it is not he who is the holder of the bond, but the third party, instructed to acquire the securities for the applicant, it being understood that, in accordance with the terms agreed, that third party, not itself a consumer, keeps the security in its own name on trust for the applicant, and the latter may claim only delivery of the security under the law of obligations? (b) if Question 1(a)(i) is answered in the affirmative, does the court seised of contractual claims arising from a bond purchase have ancillary jurisdiction too under Article 15(1) of Regulation No 44/2001 for claims in tort or delict? (2) (a) As regards Article 5(1)(a) of Regulation [No 44/2001], is the wording “in matters relating to a contract” in that provision to be interpreted as meaning that: (i) an applicant, who has acquired a bearer bond on the secondary market and now claims rights against the issuer of the bond on the basis of the bond terms and conditions, of breach of information and control obligations and of the issuer’s prospectus liability, may invoke the ground of jurisdiction under that provision when, as a result of purchasing the security from a third party, he has entered into the contractual relationship between the issuer and the original subscriber of the bond and (ii) if Question 2(a)(i) is answered in the affirmative, the applicant may also invoke jurisdiction under Article 5(1)(a) of Regulation No 44/2001 when it is not he who is the holder of the bond, but the third party, instructed to acquire the securities for the applicant, it being understood that, in accordance with the terms agreed, that third party keeps the security in its own name on trust for the applicant, and the latter may claim only delivery of the security under the law of obligations? (b) if Question 2(a)(i) is answered in the affirmative, does the court seised of contractual claims arising from a bond purchase have ancillary jurisdiction too under Article 5(1)(a) of Regulation No 44/2001 for claims in tort or delict? (3) (a) As regards Article 5(3) of Regulation No 44/2001, in connection with the issue of a bearer bond, can rights relating to the legislation on capital markets and based on prospectus liability incurred by the issuer and on breach of obligations to protect and advise be considered to be rights in tort, delict or quasi-delict within the meaning of [that provision]? (i) If Question 3(a) is answered in the affirmative, does the same apply when a person who is not himself the holder of the bond, but has only a contractual claim for delivery under the law of obligations against the holder who is holding the bond in trust for him, asserts such claims against the issuer? (b) Is the wording “the place where the harmful event occurred or may occur” in Article 5(3) of Regulation [No 44/2001] to be interpreted as meaning that, when a security is purchased on the basis of deliberately misleading information, (i) the place where the damage occurred is taken to be the domicile of the person suffering the loss, being the place where his assets are concentrated? (ii) If Question 3(b)(i) is answered in the affirmative, does the same apply when the purchase order and the transfer of value can be revoked until settlement of the transaction, and settlement took place in another Member State some time after the withdrawal from the account of the person suffering the loss? (4) As regards its examination as to jurisdiction in accordance with Articles 25 and 26 of Regulation No 44/2001, must the court conduct a comprehensive taking of evidence in relation to disputed facts which are of relevance both for the question of jurisdiction and for the existence of the claim (“doubly relevant facts”) or is it, when determining jurisdiction, to start from the premise that the facts asserted by the applicant are correct?’