Harald Kolassa v Barclays Bank plc.
Date: 2015-01-28
21. At the outset, it should be recalled, first, that in so far as Regulation No 44/2001 now replaces the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 36) as amended by the successive conventions relating to the accession of new Member States to that convention, the interpretation provided by the Court in respect of the provisions of the Brussels Convention is valid also for those of the regulation whenever the provisions of those instruments may be regarded as equivalent (see judgment in Maletic , C‑478/12, EU:C:2013:735, paragraph 27 and case-law cited).
22. Second, the concepts used in Regulation No 44/2001, in particular those which appear in Article 15(1) of the regulation, 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 (see, to that effect, judgment in Česká spořitelna , C‑419/11, EU:C:2013:165, paragraph 25 and case-law cited).
23. Article 15(1) of Regulation No 44/2001 applies if three conditions are met: first, a party to a contract is a consumer who is acting in a context which can be regarded as being outside his trade or profession, second, the contract between such a consumer and a professional has actually been concluded and, third, such a contract falls within one of the categories referred to in Article 15(1)(a) to (c). Those conditions must all be fulfilled, so that if one of the three conditions is not met, jurisdiction cannot be determined under the rules relating to consumer contracts (judgment in Česká spořitelna , EU:C:2013:165, paragraph 30).
28. In that respect, it should be recalled that 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 the regulation, which confers jurisdiction upon 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, under which jurisdiction lies with the courts for the place of performance of the obligation in question. Thus, Article 15(1) must necessarily be interpreted strictly (see judgment in Česká spořitelna , EU:C:2013:165, paragraph 26 and case-law cited).
32. The rules on jurisdiction laid down, as regards consumer contracts, in Article 16(1) of the regulation apply, in accordance with the wording of that article, only to an action brought by a consumer against the other party to the contract, which necessarily implies that there be a contract concluded by the consumer with the professional concerned.
37. In order for an answer to be given to that question, it must be recalled at the outset that the concept of ‘matters relating to a contract’, within the meaning of Article 5(1) of Regulation No 44/2001, cannot be taken to refer to the classification under the relevant national law of the legal relationship in question before the national court. That concept must, on the contrary, be interpreted independently, regard being had to the general scheme and objectives of the regulation, in order to ensure that it is applied uniformly in all the Member States (judgments in Handte, C‑26/91, EU:C:1992:268, paragraph 10, and Česká spořitelna , EU:C:2013:165, paragraph 45).
38. In contrast to the requirement laid down in Article 15(1) of Regulation No 44/2001, the conclusion of a contract is not a condition for the application of Article 5(1) of that regulation, so that the exclusion of jurisdiction under the first provision is not necessarily with prejudice to the applicability of the second.
39. However, although Article 5(1)(a) of Regulation No 44/2001 does not require the conclusion of a contract, it is nevertheless essential, for that provision to apply, that an obligation be identified, since the jurisdiction of the national court under that provision is determined by the place of performance of the obligation in question. Thus, the application of the rule of special jurisdiction provided for matters relating to a contract in Article 5(1)(a) presupposes the establishment of a legal obligation freely consented to by one person towards another and on which the claimant’s action is based (see the judgment in Česká spořitelna , EU:C:2013:165, paragraphs 46 and 47).
43. In that regard, it should be recalled at the outset that Article 5(3) of Regulation No 44/2001 must be interpreted independently and strictly (see, to that effect, judgment in Coty Germany , C‑360/12, EU:C:2014: 1318, paragraphs 43 to 45).
44. The fact remains that the concept of ‘matters relating to tort, delict or quasi-delict’ within the meaning of Article 5(3) of Regulation No 44/2001 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 that regulation (see judgment in Brogsitter , C‑548/12, EU:C:2014:148, paragraph 20). Thus, it must be assessed whether actions for damages brought against an issuer on the basis of the prospectus and for breaches of other legal information obligations towards investors are matters of delict or quasi-delict in as much as they are not covered by the concept of matters relating to a contract as defined at paragraph 39 of this judgment.
45. As regards the application of Article 5(3) of Regulation No 44/2001 in circumstances such as those of the case in the main proceedings, it must be recalled that the expression ‘place where the harmful event occurred or may occur’ in that provision is 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 (judgment in Coty Germany , EU:C:2014:1318, paragraph 46).
46. In that connection, according to settled case-law, the rule of special jurisdiction laid down in Article 5(3) of Regulation No 44/2001 is based on the existence of a particularly close linking factor between the dispute and the courts of the place where the harmful event occurred or may occur, which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings (judgment in Coty Germany , EU:C:2014:1318, paragraph 47).
47. Given that identification of one of the linking factors recognised by the case-law set out in paragraph 45 above must make it possible to establish the jurisdiction of the court objectively best placed to determine whether the elements that constitute liability do in fact exist, it follows that only the court within whose jurisdiction the relevant linking factor is situated may validly be seised (judgment in Coty Germany , EU:C:2014:1318, paragraph 48).
48. It should be recalled that the Court has held that the phrase ‘place where the harmful event occurred’ does not refer to the applicant’s place of domicile 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 (judgment in Kronhofer , C‑168/02, EU:C:2004:364, paragraph 21).
49. Therefore, 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, as was the situation in the case giving rise to the judgment in Kronhofer (EU:C:2004:364), both the events causing loss and the loss itself occurred in the territory of another Member State (see, to that effect, judgment in Kronhofer , EU:C:2004:364, paragraph 20).
50. By contrast, 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 loss took place or the loss occurred.
52. On the assumption that the actions and omissions of Barclays Bank constituted a necessary precondition for the loss suffered by Mr Kolassa, which is sufficient for Article 5(3) of Regulation No 44/2001 to apply (see, to that effect, judgment in DFDS Torline , C‑18/02, EU:C:2004:74, paragraph 34), it is also necessary, for that purpose, to ascertain to what extent the facts of the case in the main proceedings lead to the conclusion that the place in which the events causing the loss took place or in which the loss occurred was where the applicant is domiciled.
56. The place where the loss occurred thus identified meets, in circumstances such as those referred to in paragraph 51 of this judgment, the objective of Regulation No 44/2001 of strengthening 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 (see, to that effect, judgment in Kronhofer , EU:C:2004:364, paragraph 20), 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 loss.
57. Having regard to the foregoing considerations, the answer to Question 3 is that Article 5(3) of Regulation No 44/2001 must be interpreted as applying 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) of the regulation. 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 loss occurred, to hear and determine such an action, 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.
Question 4
59. It is common ground that Regulation No 44/2001 does not explicitly define the extent of the verification obligations to which national courts are subject in the course of determining their international jurisdiction.
60. Although that is an aspect of national procedural law that the regulation is not intended to unify (see, to that effect, judgment in G , C‑292/10, EU:C:2012:142, paragraph 44), the application of the relevant national laws must not, nevertheless, impair the effectiveness of Regulation No 44/2001 (see the judgment in Shevill and Others , C‑68/93, EU:C:1995:61, paragraph 36 and case-law cited).
61. In that regard, the Court has held that the aim of legal certainty requires the national court seised to be able readily to decide whether it has jurisdiction, without having to consider the substance of the case (see the judgment in Benincasa , C‑269/95, EU:C:1997:337, paragraph 27). As regards the application of that requirement in the context of the particular jurisdiction at issue in the main proceedings, the Court has, on the one hand, held that a court hearing a contractual dispute 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 whether in fact the contract exists (judgment in Effer , 38/81, EU:C:1982:79, paragraph 7).
62. On the other hand, in relation specifically to Article 5(3) of Regulation No 44/2001, the Court has 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 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 that provision (judgment in Folien Fischer and Fofitec , C‑133/11, EU:C:2012:664, paragraph 50). Thus, 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 (judgment in Hi Hotel HCF , C‑387/12, EU:C:2014:215, paragraph 20).
64. Although the national court seised is not, therefore, obliged, if the defendant contests the applicant’s allegations, to conduct a comprehensive taking of evidence at the stage of determining jurisdiction, it must be pointed out that both the objective of the sound administration of justice, which underlies Regulation No 44/2001, and respect for the independence of the national court in the exercise of its functions require the national court seised to be able to examine its international jurisdiction in the light of all the information available to it, including, where appropriate, the defendant’s allegations.