CELEX: 62013CC0375
Language: en
Date: 2014-09-03
Title: Opinion of Mr Advocate General Szpunar delivered on 3 September 2014. # Harald Kolassa v Barclays Bank plc. # Reference for a preliminary ruling: Handelsgericht Wien - Austria. # Area of freedom, security and justice - Regulation (EC) No 44/2001 - Jurisdiction in civil and commercial matters - Consumer contracts - Consumer, domiciled in one Member State, having purchased securities issued by a bank in another Member State from an intermediary established in a third Member State - Jurisdiction for actions brought against the bank that issued those securities. # Case C-375/13.

OPINION OF ADVOCATE GENERAL
      SZPUNAR
      delivered on 3 September 2014 (
            1
         )
      
         Case C‑375/13
      
      
         Harald Kolassa
      
      
         v
      
      
         Barclays Bank plc
      
      
         (Request for a preliminary ruling from the Handelsgericht Wien (Austria))
      
      ‛Area of freedom, security and justice — Jurisdiction in civil and commercial matters — Consumer contracts — Consumer, domiciled in one Member State, who has purchased on the secondary market securities issued by a bank established in another Member State from an intermediary established in a third Member State — Jurisdiction for actions brought against the bank that issued those securities’
      I – Introduction
      
      
               1.
            
            
               May a bank having its seat in the United Kingdom and having issued certificates on the primary market in Germany be sued in respect of contractual liability and/or liability in tort/delict in the Austrian courts of the place of domicile of an injured investor who acquired such certificates on the secondary market? This problem forms the basis for the present reference for a preliminary ruling. Mr Kolassa and Barclays Bank are the parties to the main proceedings.
            
         
               2.
            
            
               The Handelsgericht Wien (Commercial Court, Vienna, Austria) has referred four questions to the Court for a preliminary ruling on the interpretation of Article 5(1)(a) and (3) and 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. (
                     2
                  )
            
         
               3.
            
            
               In this Opinion, I shall cite the Court’s case-law on the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (
                     3
                  ) (‘the Brussels Convention’) many times for, in so far as Regulation No 44/2001 replaces the Brussels Convention, the interpretation provided by the Court in respect of the provisions of the Brussels Convention is also valid for those of Regulation No 44/2001 whenever the provisions of those instruments may be regarded as equivalent. (
                     4
                  )
            
         II – Legal framework
      
      A – Union law
      
      
               4.
            
            
               Recital 11 in the preamble to Regulation No 44/2001 provides:
               ‘The rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile and jurisdiction must always be available on this ground save in a few well-defined situations in which the subject-matter of the litigation or the autonomy of the parties warrants a different linking factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction.’
            
         
               5.
            
            
               Chapter II of that regulation (Articles 2 to 31) contains rules on jurisdiction. Section 1 of Chapter II (Articles 2 to 4) is entitled ‘General provisions’. Article 2(1) provides that ‘[s]ubject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State’.
            
         
               6.
            
            
               Section 2 of Chapter II (Articles 5 to 7) of the regulation is entitled ‘Special jurisdiction’. Under Article 5:
               ‘A person domiciled in a Member State may, in another Member State, be sued:
               
                        1.
                     
                     
                        
                                 (a)
                              
                              
                                 in matters relating to a contract, in the courts for the place of performance of the obligation in question;
                              
                           
                                 (b)
                              
                              
                                 for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:
                                 
                                          —
                                       
                                       
                                          in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered,
                                       
                                    
                                          —
                                       
                                       
                                          in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided;
                                       
                                    
                           
                                 (c)
                              
                              
                                 if subparagraph (b) does not apply then subparagraph (a) applies;
                              
                           
                  …
               
                        3.
                     
                     
                        in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur.
                     
                  …’
            
         
               7.
            
            
               Article 15 of Regulation No 44/2001, which is in Section 4 of Chapter II (Articles 15 to 17) thereof, provides, in paragraph 1:
               ‘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, jurisdiction shall be determined by this Section, without prejudice to Article 4 and point 5 of Article 5, if:
               
                        (a)
                     
                     
                        it is a contract for the sale of goods on instalment credit terms; or
                     
                  
                        (b)
                     
                     
                        it is a contract for a loan repayable by instalments, or for any other form of credit, made to finance the sale of goods; or
                     
                  
                        (c)
                     
                     
                        in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer’s domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities.’
                     
                  
         
               8.
            
            
               Article 16(1) of the regulation provides that ‘[a] consumer may bring proceedings against the other party to a contract either in the courts of the Member State in which that party is domiciled or in the courts for the place where the consumer is domiciled’.
            
         
               9.
            
            
               Article 24 of the regulation, which is part of Section 7 of Chapter II of the regulation, provides that:
               ‘Apart from jurisdiction derived from other provisions of this Regulation, a court of a Member State before which a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction, or where another court has exclusive jurisdiction by virtue of Article 22.’
            
         
               10.
            
            
               Section 8 of Chapter II of Regulation No 44/2001, entitled ‘Examination as to jurisdiction and admissibility’, consists of Articles 25 and 26, which read as follows:
               ‘Article 25
               
               Where a court of a Member State is seised of a claim which is principally concerned with a matter over which the courts of another Member State have exclusive jurisdiction by virtue of Article 22, it shall declare of its own motion that it has no jurisdiction.
               
                  Article 26
               
               1.   Where a defendant domiciled in one Member State is sued in a court of another Member State and does not enter an appearance, the court shall declare of its own motion that it has no jurisdiction unless its jurisdiction is derived from the provisions of this Regulation.
               2.   The court shall stay the proceedings so long as it is not shown that the defendant has been able to receive the document instituting the proceedings or an equivalent document in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to this end.
               …’
            
         B – Austrian law
      
      
               11.
            
            
               Paragraph 11 of the Law on capital markets (Kapitalmarktgesetz), in its version applicable to the facts of the main proceedings, lays down, inter alia, the conditions governing the liability of the issuer of a prospectus to every investor for loss which the latter has suffered as a result of his reliance on the information contained in the prospectus.
            
         
               12.
            
            
               Paragraph 26 of the Law on investment funds (Investmentfondsgesetz), in its version applicable to the facts of the main proceedings, provides inter alia that the purchaser of a share in a foreign capital investment fund is entitled to receive, before the contract is concluded, without any cost to him, the terms and conditions of the fund and/or the articles of association of the capital investment company, a prospectus of the foreign capital investment company and a copy of the application, and that the prospectus must contain all the information which at the time of application is of essential importance for the assessment of the shares in the foreign capital investment fund.
            
         III – The dispute in the main proceedings and the questions referred for a preliminary ruling
      
      
               13.
            
            
               Barclays Bank, a bank with its seat in London (United Kingdom) and a branch in Frankfurt-am-Main (Germany), issued certificates and sold them to institutional investors, including DAB Bank AG, which has its seat in Munich (Germany). There was no sale to private individuals.
            
         
               14.
            
            
               The issue of the certificates was made on the basis of a ‘base prospectus’ dated 22 September 2005 and of a schedule of conditions dated 20 December 2005 (together with annexes). At the request of Barclays Bank, the ‘base prospectus’ was notified in Austria too. The certificates were issued in 2006. Repayment is to fall due in the year 2016.
            
         
               15.
            
            
               The transacting clearing house for this purchase was a company with its seat in Frankfurt-am-Main. That is also where the ‘global note’ was deposited.
            
         
               16.
            
            
               DAB Bank AG transferred the certificates to its subsidiary in Austria, direktanlage.at AG, which sold them on to private individuals, including Mr Kolassa, domiciled in Austria, who invested a certain sum in those certificates.
            
         
               17.
            
            
               In every case, those orders were placed and performed in the name of the respective bank. In accordance with its General Terms and Conditions of Business, direktanlage.at AG fulfilled Mr Kolassa’s order ‘in securities account’, meaning that it held, as covering assets, all its customers’ certificates in its own name at Munich, on behalf of the client in question. Mr Kolassa could claim only the right to delivery of the certificates from the corresponding share of the covering assets, it being understood that the certificates could not be transferred into his name.
            
         
               18.
            
            
               The certificate represents an undertaking’s borrowing in the form of a bearer bond. The amount repayable and, therefore, the value of the certificate are governed by an index made up of a portfolio of several target funds, so that the value of the certificate is directly indexed on this portfolio. The portfolio was to be established and administered by a limited liability company established in Germany.
            
         
               19.
            
            
               The manager of that company used his influence within the company to inject new capital into his vast pyramid fraud system. He was sentenced in Germany in 2011 to a prison sentence of 10 years and 8 months for fraud, forgery of documents and tax evasion.
            
         
               20.
            
            
               The value of the certificates is currently estimated to be EUR 0.
            
         
               21.
            
            
               Mr Kolassa then brought an action against Barclays Bank before the Handelsgericht Wien, in which he asserts both contractual rights (rights based on the bond agreement, the purchase of the bond and on the breach of pre-contractual duties to protect and advise) and claims in tort or delict (alleging irregularities in the prospectus and failures of control, in breach in particular of the Law on capital markets and the Law on investment funds). Mr Kolassa maintains that the court seised has jurisdiction, principally under Article 15(1)(c) of Regulation No 44/2001 or, failing that, under Article 5(1)(a) and (3) of that regulation.
            
         
               22.
            
            
               Barclays Bank disputes Mr Kolassa’s allegations, and the jurisdiction of the court seised too.
            
         
               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?’
                     
                  
         IV – Analysis
      
      
               24.
            
            
               The referring court states that it has not been able to establish whether there was a ‘direct’ contractual relationship between the parties. Mr Kolassa’s claims cannot be classified in the categories — to be interpreted autonomously — of contractual claims and claims in tort/delict under Regulation No 44/2001 without an interpretation from the Court.
            
         A – Question 1
      
      
               25.
            
            
               By Question 1, the referring court asks the Court, in essence, whether, in a case like that in the main proceedings, the conditions laid down in Article 15(1) of Regulation No 44/2001 are satisfied, which would mean that Mr Kolassa could bring an action against Barclays Bank in Austria pursuant to Article 16(1) of Regulation No 44/2001.
            
         
               26.
            
            
               Three conditions must be fulfilled in order for jurisdiction to be determined on the basis of Article 15(1) of that regulation. First, there must be a consumer, that is to say an individual not engaged in trade or professional activities; (
                     5
                  ) second, the right of action must relate to a consumer contract concluded between a consumer and a person who pursues commercial or professional activities; and, third, such a contract must fall within one of the categories referred to in Article 15(1)(a) to (c).
            
         
               27.
            
            
               The referring court does not specify which of the three options, (a), (b) or (c) in Article 15(1) of Regulation No 44/2001 might be applicable. In my view, it can only be the option referred to in point (c), under which the person who pursues commercial or professional activities must pursue them in the Member State of the consumer’s domicile or, by any means, direct them to that Member State or to several States including that Member State, and the contract must fall within the scope of such activities. The application of the rules on jurisdiction under Article 15(1)(a) (sale of goods on instalment credit terms) and (b) (loan repayable by instalments, or for any other form of credit, made to finance the sale of goods) of Regulation No 44/2001 must be rejected for the simple reason that the certificates do not constitute goods within the meaning of Article 15(1)(a) or (b).
            
         
               28.
            
            
               The first and third conditions seem to be satisfied in the present case. Mr Kolassa acted as a consumer, for the transaction in question was not part of his commercial or professional activities. Furthermore, the prospectus for the certificate in question was published in Austria and Barclays Bank then directed its activity to that Member State within the meaning of Article 15(1)(c) of Regulation No 44/2001.
            
         
               29.
            
            
               Is there, however, a ‘contract concluded by a … consumer’? That is the key element of the first question.
            
         
               30.
            
            
               According to the Netherlands Government, it can be inferred from the facts described by the referring court that Mr Kolassa and Barclays Bank did enter into reciprocal obligations. More specifically, the Netherlands Government’s argument is structured as follows: Barclays Bank is obliged, having regard to the method of calculation described in the prospectus, to repay the bond to Mr Kolassa, and the latter is obliged to pay the price of the bond. It is true that Mr Kolassa was not issued the certificate by the trustee and obtained only a right to the delivery of bill payable to bearer; nevertheless, that certificate represents no less than a right to the payment of a given amount to the consumer by Barclays Bank. Barclays Bank therefore has a debt vis-à-vis the person who purchased the bond, even though, according to the trustee’s General Terms and Conditions of Business, the certificate remains with it in securities account. This means that Mr Kolassa ought at all events to be regarded as the holder of the bond in the economic sense of the term.
            
         
               31.
            
            
               Mr Kolassa adds that, given that the aim of Article 15 of Regulation No 44/2001 is to protect consumers, that article must be given a broad interpretation.
            
         
               32.
            
            
               I am not convinced by this line of argument.
            
         
               33.
            
            
               It is settled case-law that the concepts used in Regulation No 44/2001, in particular those appearing in Article 15(1) thereof, must be interpreted independently, by reference principally to the general scheme and objectives of the regulation, in order to ensure that it is applied uniformly in all the Member States. (
                     6
                  ) The concept of ‘contract concluded by a … consumer’ is independent of categorisations in national law.
            
         
               34.
            
            
               According to the Court’s case-law, by virtue of the actual wording of both the introductory paragraph of Article 15(1) of Regulation No 44/2001 and Article 15(1)(c), that article requires a ‘contract’ to have been ‘concluded’ by a consumer with a person who pursues commercial or professional activities. (
                     7
                  ) This conclusion is, moreover, corroborated by the [French] title of section 4 of Chapter II of that regulation (which contains Article 15), which refers to ‘compétence en matière de contrats conclus [ (
                     8
                  )] par les consommateurs’. (
                     9
                  )
            
         
               35.
            
            
               I take the view that there has been no conclusion of a contract for the purposes of Article 15(1) of Regulation No 44/2001 and that, consequently, that article does not apply to a case like the present.
            
         
               36.
            
            
               It is true that Mr Kolassa, as an Austrian consumer, intended to participate in the investment operation implemented by Barclays Bank as the English issuing company, which had been publicised in Austria by means of a specific prospectus. He claims that the bank with which he concluded a contract, direktanlage.at AG, did not assume any economic risk.
            
         
               37.
            
            
               Nevertheless, such a statement cannot justify the conclusion that there existed a contract between Mr Kolassa and Barclays Bank.
            
         
               38.
            
            
               The only contract concluded by Mr Kolassa was a contract concluded with direktanlage.at. AG. I am not unaware that, under the national law applicable, Barclays Bank has certain obligations to Mr Kolassa. (
                     10
                  ) Nevertheless, those obligations do not stem from the conclusion of a contract between Mr Kolassa and direktanlage.at. AG.
            
         
               39.
            
            
               Nor do I see any reason to adopt a broader or more ‘economic’ interpretation of Article 15 of Regulation No 44/2001, which would run counter to the wording of that provision on the ground that it would be necessary to protect the consumer as the weakest actor.
            
         
               40.
            
            
               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 that regulation, which confers jurisdiction on 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, which confers jurisdiction on the courts of the place of performance of the obligation on which the claim is based. (
                     11
                  )
            
         
               41.
            
            
               On this point, it is true that, while the aim of Article 15(1)(c) of Regulation No 44/2001 is to protect consumers, that does not imply that that protection is absolute. (
                     12
                  ) That provision is clearly drafted and weighs the interests of consumers against those of the person who pursues commercial or professional activities. Because it is an exception to a general rule, that provision must be interpreted strictly. (
                     13
                  )
            
         
               42.
            
            
               The main aim of Regulation No 44/2001 is to ensure legal certainty as regards determination of jurisdiction in the internal market. Recital 11 in the preamble to the regulation thus states that the rules of jurisdiction must be highly predictable.
            
         
               43.
            
            
               To accept jurisdiction of the courts in the domicile of the consumer in a situation like the present case would run counter to such predictability.
            
         
               44.
            
            
               I suggest that the Court should not sacrifice the clear wording of Article 15 of Regulation No 44/2001 and the rationale of that provision in the general scheme of the regulation in order to adopt an ‘economic’ approach with a view to protecting consumers. The Union legislature would have to take appropriate action if it were to establish a need to act. (
                     14
                  )
            
         
               45.
            
            
               Consequently, I propose that the Court should answer Question 1 to the effect that Article 15(1) of Regulation No 44/2001 must be interpreted as requiring a contract to have been concluded between the parties to the dispute. When a consumer has acquired a certificate based on a corporate bond in the form of a bearer bond, not from the issuer of that certificate but from a third party who has himself obtained it from the issuer, no contract has been concluded between the consumer and the issuer of the certificate.
            
         B – Question 2
      
      
               46.
            
            
               By Question 2, the referring court essentially asks the same questions as those examined above, but this time with reference to Article 5(1)(a) of Regulation No 44/2001, under which, ‘in matters relating to a contract’, a person may be summoned to appear in the courts for the place of performance of the obligation.
            
         
               47.
            
            
               In its question, the referring court seems to start from the idea that the injured person has been subrogated to the rights of the original subscriber of the bond in the contract concluded with the issuer. If the referring court were to find that Mr Kolassa had been subrogated to the legal position of that subscriber in so far as he had acquired all the rights and obligations of direktanlage.at AG and had therefore become a contracting party to the contract concluded with Barclays Bank, it would, in my view, be a case of ‘matters relating to a contract’ within the meaning of Article 5(1)(a) of Regulation No 44/2001. The arguments below presuppose that this is not the case, given that the referring court itself states, in its own reasoning in support of the reference, that Mr Kolassa did not, according to general Austrian civil law, enter a contractual relationship with Barclays Bank.
            
         
               48.
            
            
               The Court and legal literature (
                     15
                  ) give different interpretations to the notions of contract in the context of Articles 15 and 5(1) of Regulation No 44/2001, respectively.
            
         
               49.
            
            
               As far as Article 5(1) is concerned, the Court gives an autonomous, broad interpretation to ‘matters relating to a contract’. (
                     16
                  ) In particular, that article does not, according to the Court, require a contract to have been concluded. (
                     17
                  ) Identifying a contractual obligation is nevertheless essential if that provision is to apply, for jurisdiction under that provision is established on the basis of the place of performance of the contractual obligation in question.
            
         
               50.
            
            
               According to settled case-law since Handte, (
                     18
                  ) the term ‘matters relating to a contract’, as used in Article 5(1) of Regulation No 44/2001, (
                     19
                  ) is not to be understood as covering a situation in which there is no obligation freely assumed by one party towards another. That case concerned a chain of international goods contracts in which the parties’ contractual obligations varied from contract to contract, so that the contractual rights which the sub-buyer could enforce against his immediate seller would not necessarily be the same as those which the manufacturer would have accepted in his relationship with the first buyer. (
                     20
                  )
            
         
               51.
            
            
               In the present case, the transactions between the different parties are harder to categorise. However, as in the case giving rise to the judgment in Handte (EU:C:1992:268), there is a chain of contracts and an ‘obligation freely assumed by one party towards another’ cannot be considered to exist between Mr Kolassa and Barclays Bank.
            
         
               52.
            
            
               According to this case-law, there is no contractual link between Mr Kolassa and Barclays Bank for the purposes of Article 5(1)(a) of Regulation No 44/2001.
            
         
               53.
            
            
               I would reiterate that, as the referring court has stated, under the applicable national law Barclays Bank has certain obligations to Mr Kolassa. However, those obligations are not contractual for the purposes of the abovementioned provision.
            
         
               54.
            
            
               Consequently, I propose that the Court should answer Question 2 to the effect that Article 5(1)(a) of Regulation No 44/2001 must be interpreted as requiring a contractual relationship in the sense of an obligation freely assumed by one party towards another. Such a relationship does not exist in a situation in which a private individual has acquired a certificate based on a corporate bond in the form of a bearer bond, not from the issuer of that certificate, but from a third party who has himself obtained it from the issuer.
            
         C – Question 3
      
      
               55.
            
            
               Question 3 concerns the rule of special jurisdiction laid down in Article 5(3) of Regulation No 44/2001. The referring court seeks to ascertain whether an action based on the alleged incompleteness or lack of clarity of the information prospectus on the operation and on the presumed lack of control of the management of the funds with which the certificates were indexed may be regarded as an action in matters relating to tort, delict or quasi-delict within the meaning of Article 5(3) of that regulation.
            
         
               56.
            
            
               The main reason for the rule of special jurisdiction laid down in Article 5(3) of Regulation No 44/2001 is, according to the Court’s settled case-law, based on the existence of a particularly close connecting factor between the dispute and the courts of the place where the harmful event occurred, which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings. (
                     21
                  ) The courts for the place where the harmful event occurred are usually the most appropriate for deciding the case, in particular on the grounds of proximity and ease of taking evidence. (
                     22
                  )
            
         
               57.
            
            
               First, the referring court asks whether capital market-related prospectus liability claims, and claims based on breach of obligations to protect and advise in connection with the issue of a bearer bond are to be considered to be ‘claims in tort, delict or quasi-delict’ within the meaning of Article 5(3) of Regulation No 44/2001.
            
         
               58.
            
            
               The answer to this sub-question is clearly affirmative. First of all, this — autonomous — notion includes all actions seeking to establish the liability of a defendant and not related to a contract within the meaning of Article 5(1) of Regulation No 44/2001. (
                     23
                  ) Article 5(3) of that regulation does not in itself exclude certain matters. This is confirmed by legal literature, which stresses that that article is, in principle, applicable to damage suffered by investors (
                     24
                  ) and, in particular, to prospectus liability. (
                     25
                  )
            
         
               59.
            
            
               As regards the determination of the place where the harmful event occurred or may occur, the referring court asks whether the place where the damage occurred is taken to be the domicile of the person suffering the loss, as the place where his assets are concentrated, namely, in Austria.
            
         
               60.
            
            
               It is settled case-law that, when the place where the event that may give rise to liability in tort, delict or quasi-delict occurs and the place where that event results in damage are not identical, the expression ‘place where the harmful event occurred’ may encompass two different places, namely: the place where the damage occurred (
                     26
                  ) and the place of the event giving rise to it. (
                     27
                  ) (
                     28
                  )
            
         
               61.
            
            
               In addition, in Kronhofer (EU:C:2004:364) the Court ruled that Article 5(3) of the Brussels Convention must be interpreted as meaning that the expression ‘place where the harmful event occurred’ does not refer to the place where the claimant is domiciled or where ‘his assets are concentrated’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 Contracting State. (
                     29
                  ) As regards this special jurisdiction in Article 5(3), the Court followed Advocate General Léger who, in the Opinion in that case, pointed out that there was nothing in such a situation to justify attributing jurisdiction to the courts of a Contracting State other than that in whose territory the event which resulted in damage occurred and the entirety of the damage was sustained, that is to say, all the elements which give rise to liability. (
                     30
                  ) To confer jurisdiction in that way would not meet any objective need as regards evidence or the conduct of the proceedings. (
                     31
                  )
            
         
               62.
            
            
               The question therefore arises what the elements are that might give rise to liability in the present case.
            
         
               63.
            
            
               Even if the facts set out in the decision for reference do not provide sufficiently specific information to dispel any doubt as to the determination of the place where the damage occurred, it none the less seems clear that the facts of the present case are not comparable to those in the case giving rise to the judgment in Kronhofer (EU:C:2004:364). It should be recalled that, in that case, the applicant in the main proceedings, Mr Kronhofer, who was domiciled in Austria, had entered, by telephone, into a call option contract relating to shares with private individuals domiciled in Germany and had thus transferred the amount due to an investment account in Germany.
            
         
               64.
            
            
               In contrast, in the present case Barclays Bank published a prospectus in Austria. This is an indicator of a harmful event which could establish jurisdiction under Article 5(3) of Regulation No 44/2001.
            
         
               65.
            
            
               I take the view that when a prospectus is published in one or more Member States, there may, in each case, be a harmful event which could establish jurisdiction under Article 5(3) of Regulation No 44/2001.
            
         
               66.
            
            
               Against this background, I would be inclined, as the Commission suggests in its observations, to have recourse to Shevill and Others, (
                     32
                  ) in which the Court interpreted the terms ‘place where the harmful event occurred’ to the effect that the victim of a libel by a newspaper article distributed in several Contracting States could also bring an action for damages against the publisher before the courts of each Contracting State in which the publication was distributed and the victim claims to have suffered injury to his reputation, that action being limited to damage suffered in the country whose court is seised. This idea is confirmed in eDate Advertising and Others. (
                     33
                  )
            
         
               67.
            
            
               I therefore propose that the Court should answer Question 3 to the effect that Article 5(3) of Regulation No 44/2001 must be interpreted as including all actions which seek to establish the liability of a defendant and are not related to a contract within the meaning of Article 5(1) of Regulation No 44/2001. The former provision encompasses legal prospectus liability. The ‘place where the harmful event occurred’, within the meaning of Article 5(3) of Regulation No 44/2001, must be interpreted as encompassing the place in which the certificate holder is domiciled, if the publication of the prospectus in the Member State in which the holder is domiciled gives rise to financial damage.
            
         D – Question 4
      
      
               68.
            
            
               By Question 4, the referring court essentially asks whether, in the context of its examination as to jurisdiction, it must conduct a comprehensive taking of evidence or start from the premiss that the facts asserted by the applicant in the main proceedings alone are correct.
            
         
               69.
            
            
               It should be noted as a preliminary point that the jurisdiction of the court is determined by the autonomous rules of Regulation No 44/2001, whilst the merits of the case are decided on the basis of the national law applicable, determined by the conflict-of-law rules relating to contractual (
                     34
                  ) or non-contractual obligations. (
                     35
                  )
            
         
               70.
            
            
               The referring court does not explain why it refers to Articles 25 and 26 of Regulation No 44/2001. In my view, those articles have nothing to do with the question asked. According to its wording, Article 25 refers only to exclusive jurisdiction under Article 22 of Regulation No 44/2001.
            
         
               71.
            
            
               The question of the scope of the examination is raised for all the rules of jurisdiction in Regulation No 44/2001.
            
         
               72.
            
            
               It seems that the existing case-law already offers us several possible ways of answering this question, which have, moreover, already been mentioned in the decision for reference.
            
         
               73.
            
            
               Regulation No 44/2001 does not specify the extent of the control obligations on the national court in the examination of its jurisdiction. It is settled case-law that the object of the Brussels Convention was not to unify the rules of procedure of the Contracting States, but to determine which court has jurisdiction in disputes relating to civil and commercial matters in relations between the Contracting States and to facilitate the enforcement of judgments. (
                     36
                  ) The Court has also consistently held that, as regards procedural rules, reference must be made to the national rules applicable by the national court, provided that the application of those rules does not impair the effectiveness of the Brussels Convention. (
                     37
                  )
            
         
               74.
            
            
               Thus, the Court ruled that a plaintiff may invoke the jurisdiction of the courts of the place of performance in accordance with Article 5(1) of the Brussels Convention, even when the existence of the contract on which the claim is based is in dispute between the parties. (
                     38
                  ) It also stated that it was consonant with that aim of legal certainty that the court seised should be able readily to decide whether it has jurisdiction on the basis of the rules of the Convention, without having to consider the substance of the case. (
                     39
                  )
            
         
               75.
            
            
               More recently, the Court 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 for a negative declaration 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 Article 5(3) of Regulation No 44/2001. (
                     40
                  ) It also took the view that, for the application of Article 5(3) of Regulation No 44/2001, 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. (
                     41
                  )
            
         
               76.
            
            
               That being said, in order to establish its jurisdiction, the court called upon to settle a dispute may not, as the referring court would seem to suggest, base its findings solely on the evidence put forward by the applicant. In order to ensure the effectiveness of Regulation No 44/2001, it must base its findings on all the evidence available to it.
            
         
               77.
            
            
               Against this background, I consider that Article 24 of Regulation No 44/2001 would lose its normative value if the defendant could not present its arguments regarding the jurisdiction of the court seised. Article 24 expressly provides for the possibility for the defendant of presenting its arguments regarding jurisdiction.
            
         
               78.
            
            
               That said, the court seised must not delay the examination of jurisdiction by taking evidence. It must conduct a prima facie assessment of its jurisdiction.
            
         
               79.
            
            
               It seems to me, therefore, that national procedural rules like those described by the referring court, which provide that the court seised must only examine the legal sufficiency of the facts asserted by the applicant, without the evidence presented by the defendant being taken into consideration, should the case arise, are contrary to the effectiveness of Regulation No 44/2001.
            
         
               80.
            
            
               I therefore propose that the Court should answer Question 4 to the effect that, in order to determine its jurisdiction under the provisions of Regulation No 44/2001, the court seised must, in the context of a prima facie review, assess all the evidence available to it, including, where appropriate, the evidence put forward by the defendant.
            
         V – Conclusion
      
      
               81.
            
            
               In the light of the above considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Handelsgericht Wien as follows:
               
                        (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 requiring the conclusion of a contract between the parties to the dispute. When a consumer has acquired a certificate based on a corporate bond in the form of a bearer bond, not from the issuer of that certificate but from a third party who has himself obtained it from the issuer, no contract has been concluded between the consumer and the issuer of the certificate.
                     
                  
                        (2)
                     
                     
                        Article 5(1)(a) of Regulation No 44/2001 must be interpreted as requiring a contractual relationship in the sense of an obligation freely assumed by one party towards another. Such a relationship does not exist in a situation in which a private individual has acquired a certificate based on a corporate bond in the form of a bearer bond, not from the issuer of that certificate but from a third party who has himself obtained it from the issuer.
                     
                  
                        (3)
                     
                     
                        Article 5(3) of Regulation No 44/2001 must be interpreted as including all actions which seek to establish the liability of a defendant and are not related to a contract within the meaning of Article 5(1) of Regulation No 44/2001. That former provision encompasses legal prospectus liability. The ‘place where the harmful event occurred’ within the meaning of Article 5(3) of Regulation No 44/2001 must be interpreted as encompassing the place in which the certificate holder is domiciled if the publication of the prospectus in the Member State in which the holder is domiciled gives rise to financial damage.
                     
                  
                        (4)
                     
                     
                        In order to determine its jurisdiction under the provisions of Regulation No 44/2001, the court seised must, in the context of a prima facie review, assess all the evidence available to it, including, where appropriate, the evidence put forward by the defendant.
                     
                  
         (
            1
         )	Original language: French.
      (
            2
         )	OJ 2001 L 12, p. 1.
      (
            3
         )	OJ 1978 L 304, p. 36. Convention as amended by the Convention of 9 October 1978 on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1, and — amended text — p. 77), by the Convention of 25 October 1982 on the accession of the Hellenic Republic (OJ 1982 L 388, p. 1), by the Convention of 26 May 1989 on the accession of the Kingdom of Spain and the Portuguese Republic (OJ 1989 L 285, p. 1) and by the Convention of 29 November 1996 on the accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden (OJ 1997 C 15, p. 1).
      (
            4
         )	Judgment in TNT Express Nederland (C‑533/08, EU:C:2010:243, paragraph 36 and cited case-law).
      (
            5
         )	See, in particular, judgment in Česká spořitelna (C‑419/11, EU:C:2013:165, paragraph 32 and cited case-law).
      (
            6
         )	See, to this effect, judgments in Engler (C‑27/02, EU:C:2005:33, paragraph 33); Pammer and
         Hotel Alpenhof (C‑585/08 and C‑144/09, EU:C:2010:740, paragraph 55); Mühlleitner (C‑190/11, EU:C:2012:542, paragraph 28); and Česká spořitelna (EU:C:2013:165, paragraph 25).
      (
            7
         )	Judgment in Ilsinger (C‑180/06, EU:C:2009:303, paragraph 53).
      (
            8
         )	Emphasis added.
      (
            9
         )	Judgment in Ilsinger (EU:C:2009:303, paragraph 53).
      (
            10
         )	At the hearing, the representative of Barclays Bank stated that the certificate in question is governed by German civil law. It is a bearer bond in accordance with the rules contained in Article 793 et seq. of the German Civil Code. Mr Kolassa derives certain rights from that bond, such as the right to repayment on maturity. Those rights are governed by the law and do not stem from a contractual relationship.
      (
            11
         )	Judgments in Pammer and Hotel Alpenhof (EU:C:2010:740, paragraph 53) and Mühlleitner (EU:C:2012:542, paragraph 26).
      (
            12
         )	Judgments in Pammer and Hotel Alpenhof (EU:C:2010:740, paragraph 70) and Mühlleitner (EU:C:2012:542, paragraph 33).
      (
            13
         )	See judgment in Mühlleitner (EU:C:2012:542, paragraph 27).
      (
            14
         )	With regard to attempts to strengthen the protection of the investor (consumer), see von Hein, J., ‘Verstärkung des Kapitalanlegerschutzes: Das Europäische Zivilprozessrecht auf dem Prüfstand’, Europäische Zeitschrift für Wirtschaftsrecht (2011), pp. 369 to 373, and in particular p. 372.
      (
            15
         )	See, for example, Kropholler, J., and von Hein, J., Europäisches Zivilprozessrecht, 9th ed., Verlag Recht und Wirtschaft, Frankfurt am Main 2011, Article 5, EuGVO, paragraph 6; Geimer, R., Europäisches Zivilverfahrensrecht, 3rd ed., Verlag C.H. Beck, Munich, 2010, Article 5, EuGVVO paragraph 24, and Bach, I., ‘Was ist wo Vertrag und was wo nicht?’, Internationales Handelsrecht (2010), pp. 17 to 25, and in particular p. 23.
      (
            16
         )	Judgment in Engler (EU:C:2005:33, paragraphs 33 and 48). In that judgment, the Court refers to the Opinion of Advocate General Jacobs, according to which such an approach appears to reflect the intention implied by the wording used in the provision’s various language versions, which is appreciably broader than that of Article 15 of Regulation No 44/2001. See Mr Jacobs’s Opinion in Engler (C‑27/02, EU:C:2004:414, point 38).
      (
            17
         )	Judgments in Tacconi (C‑334/00, EU:C:2002:499, paragraph 22) and Česká spořitelna (EU:C:2013:165, paragraph 46).
      (
            18
         )	C‑26/91, EU:C:1992:268, paragraph 15. See also judgment in OTP Bank (C‑519/12, EU:C:2013:674, paragraph 23 and cited case-law).
      (
            19
         )	I should point out that in the judgment in Handte (EU:C:1992:268) the Court interpreted Article 5(1) of the Brussels Convention.
      (
            20
         )	Judgment in Handte (EU:C:1992:268, paragraph 17).
      (
            21
         )	See judgment in Zuid-Chemie (C‑189/08, EU:C:2009:475, paragraph 24 and cited case-law).
      (
            22
         )	Ibid., paragraph 24 and cited case-law.
      (
            23
         )	See judgments in Kalfelis (189/87, EU:C:1988:459, paragraphs 17 and 18) and Engler (EU:C:2005:33, paragraph 29).
      (
            24
         )	Judgment in Kronhofer (C‑168/02, EU:C:2004:364).
      (
            25
         )	See, for example, Bachmann, G., ‘Die internationale Zuständigkeit für Klagen wegen fehlerhafter Kapitalmarktinformation’, Praxis des Internationalen Privat- und Verfahrensrechts, vol. 27, 2007, pp. 77 to 86, and in particular p. 81; Kropholler, J., and von Hein, J., op. cit., paragraph 74.
      (
            26
         )	Called ‘Erfolgsort’ in German legal writing and ‘miejsce wystąpienia szkody’ in Polish legal writing.
      (
            27
         )	Called ‘Handlungsort’ in German legal writing and ‘miejsce powstania zdarzenia powodującego szkodę’ in Polish legal writing.
      (
            28
         )	See judgments in Bier (21/76, EU:C:1976:166, paragraph 24); Zuid-Chemie (EU:C:2009:475, paragraph 23); and Kainz (C‑45/13, EU:C:2014:7, paragraph 23).
      (
            29
         )	Judgment in Kronhofer (EU:C:2004:364, paragraph 21).
      (
            30
         )	See the Opinion of Advocate General Léger in Kronhofer (C‑168/02, EU:C:2004:24, point 46).
      (
            31
         )	Judgment in Kronhofer (EU:C:2004:364, paragraph 18).
      (
            32
         )	C‑68/93, EU:C:1995:61, paragraph 33.
      (
            33
         )	C‑509/09 and C‑161/10, EU:C:2011:685, paragraph 52.
      (
            34
         )	Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6).
      (
            35
         )	Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) (OJ 2007 L 199, p. 40).
      (
            36
         )	See, in this regard, judgments in Shevill and Others (EU:C:1995:61, paragraph 35); Italian Leather (C‑80/00, EU:C:2002:342, paragraph 43); and DFDS Torline (C‑18/02, EU:C:2004:74, paragraph 23).
      (
            37
         )	Judgments in Hagen (C‑365/88, EU:C:1990:203, paragraphs 19 and 20) and Shevill and Others (EU:C:1995:61, paragraph 36).
      (
            38
         )	Judgment in Effer (38/81, EU:C:1982:79, paragraph 8).
      (
            39
         )	Judgment in Benincasa (C‑269/95, EU:C:1997:337, paragraph 27).
      (
            40
         )	Judgment in Folien Fischer and Fofitec (C‑133/11, EU:C:2012:664, paragraph 50).
      (
            41
         )	Judgment in Hi Hotel HCF (C‑387/12, EU:C:2014:215, paragraph 20).