Helga Löber v Barclays Bank PLC.
Date: 2018-09-12
17


As a preliminary point, it must be recalled that the rule of special jurisdiction laid down by Article 5(3) of that regulation must be interpreted independently and strictly (judgments of 28 January 2015, Kolassa, C‑375/13, EU:C:2015:37, paragraph 43; of 21 May 2015, CDC Hydrogen Peroxide, C‑352/13, EU:C:2015:335, paragraph 37, and of 21 April 2016, Austro-Mechana, C‑572/14, EU:C:2016:286, paragraph 29).
18


The jurisdiction provided for in Article 2 of that regulation, namely that the courts of the Member State in which the defendant is domiciled are to have jurisdiction, constitutes the general rule. It is only by way of derogation from that general rule that the regulation provides for special and exclusive rules of jurisdiction for cases, which are exhaustively listed, in which the defendant may or must, depending on the case, be sued in the courts of another Member State (judgment of 13 July 2006, Reisch Montage, C‑103/05, EU:C:2006:471, paragraph 22, and of 12 May 2011, BVG, C‑144/10, EU:C:2011:300, paragraph 30).
19


It is the Court’s settled case-law that the concept of ‘matters relating to tort, delict or quasi-delict’ covers all actions which seek to establish the liability of a defendant and do not concern ‘matters relating to a contract’ within the meaning of Article 5(1)(a) of Regulation No 44/2001 (judgments of 27 September 1988, Kalfelis, 189/87, EU:C:1988:459, paragraphs 17 and 18; of 13 March 2014, Brogsitter, C‑548/12, EU:C:2014:148, paragraph 20; of 21 April 2016, Austro-Mechana, C‑572/14, EU:C:2016:286, paragraph 32, and of 16 June 2016, Universal Music International Holding, C‑12/15, EU:C:2016:449, paragraph 24).
20


In particular, the Court held that Article 5(3) of that regulation applies to an action seeking to put in issue the liability of the issuer of a certificate on the basis of the prospectus relating to it and of breach of other legal information obligations binding on the issuer, in so far as that liability is not based on a ‘matter relating to a contract’, within the meaning of Article 5(1)(a) of that regulation (judgment of 28 January 2015, Kolassa, C‑375/13, EU:C:2015:37, paragraph 57).
22


As to the concept of ‘place where the harmful event occurred or may occur’ in Article 5(3) of Regulation No 44/2001, those words are intended to cover both the place where the damage occurred and the place of the event giving rise to it, so that the defendant may be sued, at the option of the applicant, in the courts for either of those places (judgments of 10 June 2004, Kronhofer, C‑168/02, EU:C:2004:364, paragraph 16; of 28 January 2015, Kolassa, C‑375/13, EU:C:2015:37, paragraph 45; of 21 May 2015, CDC Hydrogen Peroxide, C‑352/13, EU:C:2015:335, paragraph 38, and of 16 June 2016, Universal Music International Holding, C‑12/15, EU:C:2016:449, paragraph 28).
23


In this connection, the Court has held that the term ‘place where the harmful event occurred’ may not be construed so extensively as to encompass any place where the adverse consequences of an event, which has already caused damage actually arising elsewhere, can be felt (judgment of 19 September 1995, Marinari, C‑364/93, EU:C:1995:289, paragraph 14; of 10 June 2004, Kronhofer, C‑168/02, EU:C:2004:364, paragraph 19, and of 16 June 2016, Universal Music International Holding, C‑12/15, EU:C:2016:449, paragraph 34) and that such a concept does not refer to the place where the applicant is domiciled and 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 Member State (judgments of 10 June 2004, Kronhofer, C‑168/02, EU:C:2004:364, paragraph 21, and of 16 June 2016, Universal Music International Holding, C‑12/15, EU:C:2016:449, paragraph 35).
24


Thus, the mere fact that the applicant has suffered financial consequences does not justify the attribution of jurisdiction to the courts of the applicant’s domicile if both the events causing damage and the damage itself occurred in the territory of another Member State (judgment of 28 January 2015, Kolassa, C‑375/13, EU:C:2015:37, paragraph 49).
25


On the other hand, such an attribution of jurisdiction is justified if the applicant’s domicile is in fact the place in which the events giving rise to the damage took place or the damage occurred (judgment of 28 January 2015, Kolassa, C‑375/13, EU:C:2015:37, paragraph 50).
27


It follows from the Court’s case-law that such a place is that where the alleged damage actually manifests itself (judgment of 21 May 2015, CDC Hydrogen Peroxide, C‑352/13, EU:C:2015:335, paragraph 52).
28


In addition, the Court has held that under Article 5(3) of Regulation No 44/2001, the courts where the applicant is domiciled have jurisdiction, on the basis of the place where the damage occurred, to hear and determine an action seeking to put in issue the liability of the issuer of a certificate on the basis of the prospectus relating to it and of breach of other legal information obligations binding on the issuer, particularly when the damage alleged occurred directly in the applicant’s bank account held with a bank established within the area of jurisdiction of those courts (judgment of 28 January 2015, Kolassa, C‑375/13, EU:C:2015:37, paragraph 57).
29


In its judgment of 16 June 2016, Universal Music International Holding (C‑12/15, EU:C:2016:449), the Court stated that that finding was made within a specific context, the distinctive feature of which was the existence of circumstances contributing to attributing jurisdiction to those courts (judgment of 16 June 2016, Universal Music International Holding, C‑12/15, EU:C:2016:449, paragraph 37).
30


Thus, it held that Article 5(3) of Regulation No 44/2001 must be interpreted as meaning that the ‘place where the harmful event occurred’ may not be construed as being, failing any other connecting factors, the place in a Member State where the damage occurred when that damage consists exclusively of financial loss which materialises directly in the bank account of the applicant and is the direct result of an unlawful act committed in another Member State (judgment of 16 June 2016, Universal Music International Holding, C‑12/15, EU:C:2016:449, paragraph 40).
35


In this connection, given that the issuer of a certificate who does not comply with his legal obligations in respect of the prospectus must, when he decides to notify the prospectus relating to that certificate in other Member States, anticipate that inadequately informed operators, domiciled in those Member States, might invest in that certificate and suffer damage, the objective of Regulation No 44/2001 — which is to strengthen the legal protection of persons established in the European Union by enabling the applicant to identify easily the court in which he may sue and the defendant reasonably to foresee in which court he may be sued — is met by upholding as the place where the damage occurred the place where the bank is established in which the applicant possessed the bank account in which the damage occurred (see, to that effect, judgment of 28 January 2015, Kolassa, C‑375/13, EU:C:2015:37, paragraph 56).