Regulation (EC) No 44/2001 – 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

Judgment

C-375/13

28.01.2015

Parties

Jurisdiction

Formation

Judge Rapporteur

Advocate General

Subject-matter

Request for a preliminary ruling

Harald Kolassa

v

Barclays Bank plc

CJEU

4th Chamber

M. Safjan

M. Szpunar

Brussels I Regulation – Financial law and consumer protection

Keywords

Regulation (EC) No 44/2001 – Jurisdiction in civil and commercial matters – 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 issuer of those securities

Significant points

1. Under which provision of Brussels I Regulation may an applicant who, as a consumer, has acquired a bearer bond from a third party professional invoke jurisdiction for the purposes of an action brought against the issuer of the bond on the basis of the bond conditions, breach of the information and control obligations and liability for the prospectus?

a.  Not under 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 due to the lack of an agreement between the consumer and the issuer of the bond.

b. Not under Article 5 (1) (a) of Regulation No 44/2001 due to the lack of a legal obligation freely consented to by the issuer towards the applicant.

c. 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.

In this respect, 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.

2. In the context of the determination of international jurisdiction under Regulation No 44/2001, it is not necessary to conduct a comprehensive analysis of the evidence in relation to the disputed facts that are relevant both to the question of jurisdiction and to the existence of the claim. It is, however, permissible for the court hearing the case to examine its international jurisdiction in the light of all the information available to it, including, where appropriate, the allegations made by the defendant.

Noteworthy

  1. Articles 15(1), 5(1) and 5(3) of the Regulation No 44/2001 must be interpreted strictly since they constitute respectively a derogation from the general rule of jurisdiction laid down in Article 2 (1) of the regulation/rules of special jurisdictions for contracts, tort, delict or quasi-delict.
  2. This being said, the Kolossa judgment brings valuable clarifications to the Kronhofer judgment (C-168/02) regarding the jurisdiction of the courts where the applicant is domiciled under Article 5(3) of Regulation No 44/2001. Provided that the bank account in which the loss occurred is held within the Member State of residence of the plaintiff (by contrast to the situation in the Kronhofer case), they are competent.