Case C‑366/13

Profit Investment SIM SpA

v

Stefano Ossi and Others

(Request for a preliminary ruling from the Corte suprema di cassazione)

‛Reference for a preliminary ruling — Regulation (EC) No 44/2001 — Area of Freedom, Security and Justice — Concept of ‘irreconcilable judgments’ — Actions having different subject-matters brought against several defendants domiciled in various Member States — Conditions for the prorogation of jurisdiction — Jurisdiction clause — Concept of ‘matters relating to a contract’ — Verification of the lack of a valid contractual link’

Summary — Judgment of the Court (First Chamber), 20 April 2016

Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — More than one defendant — Jurisdiction of the court of one of the co-defendants — Condition — Connection — Existence of a risk of irreconcilable judgments — Scope — Actions which have different subject-matters and bases and which are not connected by a link of subordination or incompatibility — Potential influence of the outcome of the first action on that of the second — Insufficient impact to characterise the judgments as irreconcilable

Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Prorogation of jurisdiction — ‘In writing’ requirement — Jurisdiction clause included in a prospectus concerning the issue of bonds — Requirement that the contract signed by the parties upon the issue of the bonds on the primary market mention the acceptance of that clause or contain an express reference to that prospectus — Whether that clause may be relied on against a third party who acquired those bonds from a financial intermediary — Conditions

Article 23 of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that where a jurisdiction clause is included in a prospectus concerning the issue of bonds, the formal requirement laid down in that provision is met only if the contract signed by the parties upon the issue of the bonds on the primary market expressly mentions the acceptance of that clause or contains an express reference to that prospectus. Ensuring the real consent of the parties is one of the aims pursued by Article 23(1) of Regulation No 44/2001 and that provision imposes on the court before which the matter is brought the duty of examining whether the clause conferring jurisdiction upon it was in fact the subject of consensus between the parties, which must be clearly and precisely demonstrated. In addition, Article 23 of Regulation No 44/2001 must be interpreted as meaning that a jurisdiction clause contained in a prospectus produced by the bond issuer concerning the issue of bonds may be relied on against a third party who acquired those bonds from a financial intermediary if it is established that (i) that clause is valid in the relationship between the issuer and the financial intermediary, (ii) the third party, by acquiring those bonds on the secondary market, succeeded to the financial intermediary’s rights and obligations attached to those bonds under the applicable national law, and (iii) the third party had the opportunity to acquaint himself with the prospectus containing that clause. It is for the referring court to determine whether those conditions have been satisfied. (see paras 27, 29, 36, 37, 51, operative part 1)

Article 23 of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that the insertion of a jurisdiction clause into a prospectus concerning the issue of bonds may be regarded as a form which accords with a usage in international trade or commerce, allowing the consent of the person against whom it is relied upon to be presumed, provided inter alia that it is established (i) that such conduct is generally and regularly followed by the operators in the particular trade or commerce concerned when contracts of that type are concluded and (ii) either that the parties had previously had commercial or trade relations between themselves or with other parties operating in the sector in question, or that the conduct in question is sufficiently well known to be considered an established practice. It is for the referring court to determine whether those conditions have been satisfied. In that respect, the referring court must take into account, inter alia, the fact that that prospectus was approved in advance by the national stock exchange of the country in which the bonds were issued and was made available to the public on the website of that stock exchange. In addition, the referring court must take account of the fact that the third party — which acquired those bonds from a financial intermediary against whom the jurisdiction clause is relied on — is a company active in the field of financial investments as well as of any commercial relationships it may have had in the past with the other parties to the proceedings. The national court must also verify whether the issue of bonds on the market is, in that sector, generally and regularly accompanied by a prospectus containing a jurisdiction clause and whether that practice is sufficiently well known to be regarded as ‘established’. (see paras 49-51, operative part 1)

Article 5(1)(a) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that actions seeking the annulment of a contract and the restitution of sums paid but not due on the basis of that contract constitute ‘matters relating to a contract’ within the meaning of that provision. First, the national court’s jurisdiction to determine questions relating to a contract include the power to consider the existence of the constituent parts of the contract itself, since this is indispensable in order to enable the national court to examine whether it has jurisdiction under Regulation No 44/2001. Thus, respect for the aims and spirit of that regulation demands that Article 5 of that regulation should be construed as meaning that the court called upon to decide a dispute arising out of a contract 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 the existence or the non-existence of the contract. Secondly, as regards the link between the action for a declaration of nullity and the recovery of sums paid but not due, if there is not a contractual relationship freely assumed between the parties, the obligation will not be performed and there will be no right to restitution. That causal link between the right to restitution and the contractual relationship is sufficient to bring the action for restitution within the scope of matters relating to a contract. (see paras 54, 55, 58, operative part 2)