CELEX: 51986PC0193
Language: en
Date: 1986-04-11
Title: PROPOSAL FOR A COUNCIL DIRECTIVE AMENDING DIRECTIVE 85/611/EEC AS REGARDS JURISDICTION IN DISPUTES ARISING FROM THE MARKETING OF UNITS OF UNDERTAKINGS FOR COLLECTIVE INVESTMENT IN TRANSFERABLE SECURITIES ( UCITS )

28.5. 86                                  Official Journal of the European Communities                                N o C 129/5
                                                                 II
                                                          (Preparatory Acts)
                                                    COMMISSION
              Proposal for a Council Directive amending Directive 85/611/EEC as regards jurisdiction in
              disputes arising from the marketing of units of undertakings for collective investment in
                                                  transferable securities (UCITS)
                                                         COM(86) 193 final
                                (Submitted by the Commission to the Council on 22 April 1986)
                                                           (86/C 129/06)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                              laid down in Section VIII of Directive 85/611/EEC;
                                                                      whereas protection is thus afforded to the economically
                                                                      weaker contracting party, as provided for in Title II,
Having regard to the Treaty establishing the European                 Section 4 of the Brussels Convention, as amended by the
Economic Community, and in particular Article 57 (2)                  Convention of Accession of 9 October 1978 (J) of
thereof,                                                              Denmark, Ireland and the United Kingdom to the said
                                                                      Convention, with respect to contracts concluded by
Having regard to the proposal from the Commission,                    consumers;
                                                                      Whereas, however, such protection need be provided
Having regard       to   the  opinion      of  the   European         only in so far as it is really useful and necessary and, to
Parliament,                                                           that end, it seems advisable merely to lay down a rule of
                                                                      optional jurisdiction relating to disputes concerning
Having regard to the opinion of the Economic and                      contractual obligations, additional to the normal rules
Social Committee,                                                     provided for by the Brussels Convention and in
                                                                      particular Articles 2 and 5(1) thereof;
Whereas Council Directive 85/611/EEC of 20                            Whereas it is further necessary to prevent the rule of
December 1985 on the coordination of laws, regulations                jurisdiction thus laid down being circumvented by
and administrative provisions relating to undertakings for            imposing on purchasers of UCITS units, in disputes
collective    investment     in      transferable     securities      arising from the purchase of units, a contractual clause
(UCITS) ( l ) contains no provisions on jurisdiction in               conferring different jurisdiction within the meaning of
disputes arising from the marketing of UCITS units, so                Article 17 of the Brussels Convention; whereas, to that
that the rules of the Brussels Convention of 27                       end, it should be prescribed that the optional jurisdiction
September 1968 on jurisdiction and the enforcement of                 introduced by this Directive cannot be the subject of a
judgments in civil and commercial matters (2) are at                  waiver on the part of a person purchasing units, unless
present applicable in this area;                                      such a waiver occurs after the dispute has arisen;
Whereas, however, in accordance with the wish                         Whereas Section VIII of Directive 85/611/EEC covers
expressed     by     the    Council      in    adopting      the      cases in which a UCITS markets its units in a Member
abovementioned Directive, that Directive should be                    State other than that in which it is situated and the rule
amended by a Directive having the same legal basis and                of jurisdiction provided for by this Directive must be
containing specific provisions on jurisdiction;                       applied only when the units are marketed by the UCITS,
                                                                      whether this is done directly by the UCITS or indirectly
                                                                      through a representative or agent; whereas this rule must
Whereas it appears necessary to provide for persons                   not apply if there is no economically weak party to be
acting in a non-professional capacity the possibility of              protected, as is the case when a purchaser of units acts in
bringing before the courts of the Member State in whose               a professional capacity;
territory they acquired UCITS units any dispute
concerning the infringement by a UCITS of the rules                   Whereas the measures provided for in this Directive
applicable in the event of its marketing its units in a               should be brought into effect at the same time as those
Member State other than that in which it is situated, as              provided for by Directive 85/611/EEC,
(') OJ No L 375, 31. 12. 1985, p. 3.
(2) OJ No L 299, 31, 12. 1972, p. 32.                                 (') OJ No L 304, 30. 10. 1973, p. 1.
 ---pagebreak--- No C 129/6                             Official Journal of the European Communities                                   28.5.86
HAS ADOPTED THIS DIRECTIVE:                                           agreement, even if provided for by a clause inserted
                                                                      in the contract relating to the acquisition of the units,
                          Article 1                                   unless such a waiver occurs after the dispute has
                                                                      arisen.
The following Article is hereby inserted in Directive
85/611/EEC:                                                           3.    The provisions of paragraphs 1 and 2 shall not
                                                                      apply if the acquisition of the units falls within the
    'Article 48a                                                      scope of the professional activities of the person
                                                                      acquiring them.'
   1. A person who has acquired UCITS units in a
   Member State other than that in which the UCITS is                                       Article 2
   situated may bring disputes relating to compliance
   with the provisions contained in this Section before           Member States shall bring into force the measures
   the courts of the Member State in whose territory he           necessary to comply with this Directive within the same
   acquired those units, whether he acquired them direct          period as that provided for in Directive 85/611/EEC.
   from the UCITS or through a representative or agent            They shall forthwith inform the Commission thereof.
   of that UCITS.
                                                                                            Article 3
   2.     The right of a person acquiring units referred to
   in paragraph 1 may not be the subject of a waiver              This Directive is addressed to the Member States.