Česká spořitelna, a.s. v Gerald Feichter.
Date: 2013-03-14
20. It is settled case‑law that, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. Similarly, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the judicial decision to be made, to determine, in the light of the particular circumstances of the case, both the need for and the relevance of the questions that it submits to the Court. Consequently, where the questions referred concern the interpretation of European Union law, the Court is in principle bound to give a ruling (see Case C‑553/11 Rintisch [2012] ECR I‑0000, paragraph 15 and the case-law cited).
21. Thus, the Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its subject-matter, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C‑618/10 Banco Español de Crédito  [2012] ECR I‑0000, paragraph 77, and Rintisch , paragraph 16).
25. First of all, it must be recalled that 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, Case C‑27/02 Engler  [2005] ECR I‑481, paragraph 33; Joined Cases C‑585/08 and C‑144/09 Pammer and Hotel Alpenhof [2010] ECR I‑12527, paragraph 55, and Case C‑190/11 Mühlleitner  [2012] ECR I‑0000, paragraph 28).
26. Next, it must be observed 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 on the courts of the Member S tate 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 of the place of performance of the obligation on which the claim is based ( Pammer and Hotel Alpenhof , paragraph 53, and Mühlleitner , paragraph 26). Thus, Article 15(1) must necessarily be interpreted strictly (see, to that effect, Mühlleitner , paragraph 27).
27. Lastly, in so far as Regulation No 44/2001 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 accession conventions for the new Member States (‘the Brussels Convention’), in the relations between Member States, the interpretation provided by the Court in respect of the provisions of that convention is also valid for those of the regulation whenever the provisions of those instruments may be regarded as equivalent (see, in particular, Case C‑133/11 Folien Fischer and Fofitec  [2012] ECR I‑0000, paragraph 31, and Case C‑543/10 Refcomp  [2013] ECR I‑0000, paragraph 18).
28. In this connection, the Court has previously held that, in the system established by Regulation No 44/2001, Article 15(1) of the regulation, as is clear from recital 13 in the preamble to the regulation, occupies the same place and fulfils the same function of protecting the consumer as the weaker party as does the first paragraph of Article 13 of the Brussels Convention (see, to that effect, Case C‑180/06 Ilsinger  [2009] ECR I‑3961, paragraph 41; Pammer and Hotel Alpenhof , paragraph 57, and Mühlleitner , paragraph 29).
30. In order to answer that question, it must be stated that 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.
31. As regards the first condition for the application of Article 15(1) of Regulation No 44/2001, even though the wording of that provision is not identical in every respect to that of the first paragraph of Article 13 of the Brussels Convention, those amendments concern the conditions for application which consumer contracts must fulfil (see, to that effect, Pammer and Hotel Alpenhof , paragraph 59) and not the definition of the concept of consumer, so that, in Regulation No 44/2001, that concept must have the same scope as in the Brussels Convention.
32. The Court has already held, as regards the first paragraph of Article 13 of the Brussels Convention, that it follows from the wording and role of that provision that it refers only to the private final consumer, not engaged in trade or professional activities (see, to that effect, Case C‑89/91 Shearson Lehman Hutton  [1993] ECR I‑139, paragraphs 20 and 22; Case C‑269/95 Benincasa  [1997] ECR I‑3767, paragraph 15; Case C‑464/01 Gruber  [2005] ECR I‑439, paragraph 35, and Engler , paragraph 34).
33. It is also apparent from the Court’s case-law that the special rules introduced by the provisions of the Brussels Convention on jurisdiction over consumer contracts serve to ensure adequate protection for the consumer, as the party deemed to be economically weaker and less experienced in legal matters than the other, commercial, party to the contract (see, inter alia, Gruber , paragraph 34, and Engler , paragraph 39). That role implies that the application of the rules of special jurisdiction laid down to that end by the Brussels Convention should not be extended to persons for whom that protection is not justified (see, to that effect, Shearson Lehman Hutton , paragraph 19).
34. The Court drew the conclusion from this that only contracts concluded outside and independently of any trade or professional activity or purpose, solely for the purpose of satisfying an individual’s own needs in terms of private consumption, are covered by the special rules laid down by the Convention to protect the consumer. Such protection is unwarranted in the case of contracts for the purpose of a trade or professional activity (see Gruber , paragraph 36, and, to that effect, Benincasa , paragraph 17).
43. It must be pointed out in this connection, as it was in paragraph 27 above, that, in so far as the wording of Article 5(1)(a) of Regulation No 44/2001 is identical to that of the first sentence of Article 5(1) of the Brussels Convention, the scope to be given to the first provision should be identical to that of the latter provision (see, to that effect, Case C‑533/07 Falco Privatstiftung and Rabitsch  [2009] ECR I‑3327, paragraphs 48 and 56).
44. Consequently, in order to determine, under Article 5(1)(a) of Regulation No 44/2001, the court having jurisdiction, reference must still be made to the principles which result from the Court’s case-law relating to Article 5(1) of the Brussels Convention (see, to that effect, Falco Privatstiftung and Rabitsch , paragraph 57).
45. Concerning, in the first place, the interpretation of the concept of ‘matters relating to a contract’ within the meaning of Article 5(1)(a) of Regulation No 44/2001, it is important to note that that concept must 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. That concept cannot therefore be taken to refer to classification under the relevant national law of the legal relationship in question before the national court (see by analogy, inter alia, Case C‑26/91 Handte  [1992] ECR I‑3967, paragraph 10, and Case C‑265/02 Frahuil  [2004] ECR I‑1543, paragraph 22).
46. 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, to identify an obligation, since the jurisdiction of the national court under that provision is determined by the place of performance of the obligation in question. Thus, the concept of ‘matters relating to contract’ within the meaning of that provision is not to be understood as covering a situation in which there is no obligation freely assumed by one party towards another (see, by analogy, Case C‑334/00 Tacconi  [2002] ECR I‑7357, paragraphs 22 and 23, and Engler , paragraph 50).
47. Consequently, the application of the rule of special jurisdiction provided for matters relating to a contract in Article 5(1)(a) of Regulation No 44/2001 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, by analogy, Engler , paragraph 51).
54. First, the concept of ‘obligation’ in Article 5(1)(a) of Regulation No 44/2001 refers to the obligation which arises under the contract and the non-performance of which is relied upon in support of the action (see by analogy, inter alia, Case 14/76 De Bloos  [1976] ECR 1497, paragraph 13; Case 266/85 Shenavai  [1987] ECR 239, paragraph 9, and Case C‑256/00 Besix  [2002] ECR I‑1699, paragraph 44) and, second, the place of performance of that obligation is to be determined in accordance with the law governing that obligation according to the conflict rules of the court before which the proceedings have been brought (see by analogy, inter alia, Case 12/76 Industrie Tessili Italiana Como [1976] ECR 1473, paragraph 13; Case C‑440/97 GIE Groupe Concorde and Others  [1999] ECR I‑6307, paragraph 32, and Besix , paragraphs 33 and 36).
55. Moreover, having regard to the importance generally accorded by national contract law to the intention of the parties, if the parties to the contract are permitted by the applicable law, subject to the conditions it lays down, to specify the place of performance of an obligation, that agreement on the place of performance of the obligation is sufficient to found jurisdiction in that place for the purposes of Article 5(1)(a) of Regulation No 44/2001 (see, by analogy, Case 56/79 Zelger  [1980] ECR 89, paragraph 5; Case C‑106/95 MSG  [1997] ECR I‑911, paragraph 30, and GIE Groupe Concorde and Others , paragraph 28).
56. It must, however, be observed that, whilst the parties are free to agree on a place of performance for contractual obligations, they are nevertheless not entitled to designate, with the sole aim of specifying the courts having jurisdiction, a place of performance having no real connection with the reality of the contractual relationship at which the obligations arising under that relationship could not be performed in accordance with the terms of that relationship (see, to that effect, MSG , paragraph 31).