Case C‑375/13

Harald Kolassa

v

Barclays Bank plc

(Request for a preliminary ruling from the Handelsgericht Wien)

‛Area of freedom, security and justice — Regulation (EC) No 44/2001 — Jurisdiction in civil and commercial matters — Consumer contracts — 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 bank that issued those securities’

Summary — Judgment of the Court (Fourth Chamber), 28 January 2015

1. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Jurisdiction over consumer contracts — Scope — Acquisition of bearer bonds by a consumer from a third party professional — Issuer established in another Member State — Action brought by the consumer against that issuer on the basis of the bond conditions, breach of the information and control obligations and liability for the prospectus — Excluded in the absence of a contract concluded with the professional

   (Council Regulation No 44/2001, Art. 15(1))

2. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Special jurisdiction — Jurisdiction in matters relating to a contract, for the purposes of Article 5(1)(a) — Scope — Acquisition of bearer bonds by a consumer from a third party professional — Issuer established in another Member State — Action brought by the consumer against that issuer on the basis of the bond conditions, breach of the information and control obligations and liability for the prospectus — Excluded in the absence of a legal obligation freely consented to between the issuer and the applicant.

   (Council Regulation No 44/2001, Art. 5(1)(a))

3. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Special jurisdiction — Jurisdiction in tort, delict or quasi-delict — Scope — Action against the issuer of a certificate on the basis of the prospectus relating to it and breach of information obligations binding on the issuer — Action for non-contractual liability — Included — Place where the damage occurred — Damage occurred directly in the applicant’s bank account

   (Council Regulation No 44/2001, Art. 5(3))

4. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Special jurisdiction — Jurisdiction in tort, delict or quasi-delict — No obligations imposed on national courts during their determination of their international jurisdiction — Taking evidence at the stage of determining international jurisdiction — Lawfulness

   (Council Regulation No 44/2001, Art. 5(3))

1.  Article 15(1) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an applicant who, as a consumer, has acquired a bearer bond from a third party professional, without a contract having been concluded between that consumer and the issuer of the bond may not invoke jurisdiction under that provision 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.

   The requirement of the conclusion of a contract with the professional concerned himself does not lend itself to an interpretation to the effect that such a requirement is satisfied when there is a chain of contracts through which certain rights and obligations of the professional in question are transferred to the consumer. That finding is supported by a reading of Article 15 of Regulation No 44/2001 in conjunction with Article 16 thereof, which necessarily imply that there be a contract concluded by the consumer with the professional concerned.

   (see paras 30-32, 35, operative part 1)

2.  Article 5(1)(a) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, must be interpreted as meaning that an applicant who has acquired a bearer bond from a third party, without the issuer thereof having freely assumed an obligation towards that applicant may not invoke jurisdiction under that provision for the purposes of an action brought against the issuer and based on the bond conditions, breach of the information and control obligations and prospectus liability.

   The conclusion of a contract is not a condition for the application of Article 5(1) of that regulation. However, it is nevertheless essential that an obligation be identified for the application of that provision, which presupposes the establishment of a legal obligation freely consented to by one person towards another and on which the applicant’s action is based.

   (see paras 38, 39, 41, operative part 2)

3.  Article 5(3) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters 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.

   (see para. 57, operative part 3)

4.  In the context of the determination of international jurisdiction under Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, it is not necessary to conduct a comprehensive taking of evidence in relation to 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 seised to examine its international jurisdiction in the light of all the information available to it, including, where appropriate, the allegations made by the defendant.

   (see para. 65, operative part 4)

Case C‑375/13

Harald Kolassa

v

Barclays Bank plc

(Request for a preliminary ruling from the Handelsgericht Wien)

‛Area of freedom, security and justice — Regulation (EC) No 44/2001 — Jurisdiction in civil and commercial matters — Consumer contracts — 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 bank that issued those securities’

Summary — Judgment of the Court (Fourth Chamber), 28 January 2015

1. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Jurisdiction over consumer contracts — Scope — Acquisition of bearer bonds by a consumer from a third party professional — Issuer established in another Member State — Action brought by the consumer against that issuer on the basis of the bond conditions, breach of the information and control obligations and liability for the prospectus — Excluded in the absence of a contract concluded with the professional

   (Council Regulation No 44/2001, Art. 15(1))

2. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Special jurisdiction — Jurisdiction in matters relating to a contract, for the purposes of Article 5(1)(a) — Scope — Acquisition of bearer bonds by a consumer from a third party professional — Issuer established in another Member State — Action brought by the consumer against that issuer on the basis of the bond conditions, breach of the information and control obligations and liability for the prospectus — Excluded in the absence of a legal obligation freely consented to between the issuer and the applicant.

   (Council Regulation No 44/2001, Art. 5(1)(a))

3. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Special jurisdiction — Jurisdiction in tort, delict or quasi-delict — Scope — Action against the issuer of a certificate on the basis of the prospectus relating to it and breach of information obligations binding on the issuer — Action for non-contractual liability — Included — Place where the damage occurred — Damage occurred directly in the applicant’s bank account

   (Council Regulation No 44/2001, Art. 5(3))

4. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Special jurisdiction — Jurisdiction in tort, delict or quasi-delict — No obligations imposed on national courts during their determination of their international jurisdiction — Taking evidence at the stage of determining international jurisdiction — Lawfulness

   (Council Regulation No 44/2001, Art. 5(3))

1.  Article 15(1) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an applicant who, as a consumer, has acquired a bearer bond from a third party professional, without a contract having been concluded between that consumer and the issuer of the bond may not invoke jurisdiction under that provision 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.

   The requirement of the conclusion of a contract with the professional concerned himself does not lend itself to an interpretation to the effect that such a requirement is satisfied when there is a chain of contracts through which certain rights and obligations of the professional in question are transferred to the consumer. That finding is supported by a reading of Article 15 of Regulation No 44/2001 in conjunction with Article 16 thereof, which necessarily imply that there be a contract concluded by the consumer with the professional concerned.

   (see paras 30-32, 35, operative part 1)

2.  Article 5(1)(a) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, must be interpreted as meaning that an applicant who has acquired a bearer bond from a third party, without the issuer thereof having freely assumed an obligation towards that applicant may not invoke jurisdiction under that provision for the purposes of an action brought against the issuer and based on the bond conditions, breach of the information and control obligations and prospectus liability.

   The conclusion of a contract is not a condition for the application of Article 5(1) of that regulation. However, it is nevertheless essential that an obligation be identified for the application of that provision, which presupposes the establishment of a legal obligation freely consented to by one person towards another and on which the applicant’s action is based.

   (see paras 38, 39, 41, operative part 2)

3.  Article 5(3) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters 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.

   (see para. 57, operative part 3)

4.  In the context of the determination of international jurisdiction under Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, it is not necessary to conduct a comprehensive taking of evidence in relation to 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 seised to examine its international jurisdiction in the light of all the information available to it, including, where appropriate, the allegations made by the defendant.

   (see para. 65, operative part 4)