Summary
In proceedings concerning jurisdictional issues held before the Supreme Court of Cassation, reference can be made to provisions that were not examined in the related proceedings before lower courts, since the plenary session of the Supreme Court of Cassation can in this case also address issues of fact. Accordingly, the plenary session has authority to directly assess the evidence and draw conclusions therefrom in full autonomy and independence from the parties’ allegations and from the evaluations of the lower courts, and can rectify errors in the parties’ and lower courts’ arguments as well as fill-in possible gaps. Pursuant to Article 5(1)(a) of Regulation (EC) No 44/2001, Italian courts have jurisdiction over an action brought by an Italian company against an Austrian bank for the enforcement of a first demand guarantee. In fact, the place where the obligation in question was or is to be performed is deemed to be in Italy, due to the fact that (i) jurisdiction over a foreigner must be ascertained on the basis of the plaintiff’s allegations and, accordingly, the provision at Article 5(1)(a) of Regulation No 44/2001 applies even if the defendant challenges the existence or enforceability of the contract, (ii) such place must be determined with reference to the obligation corresponding to the right which forms the object of the plaintiff’s claim and to the place of performance of said obligation, as determined pursuant to the law that governs the legal relationship in dispute, (iii) pursuant to Article 4(3) of the Rome Convention of 19 June 1980 – overcoming the presumption established at Article 4(2) of the same Convention, as referred to by Article 57 of Law No 218/1995 – such law is Italian law, since the obligation of the guarantor is aimed at ensuring the satisfaction of the financial interest of the beneficiary which has been prejudiced by the lack of performance and, accordingly, the obligation in question is most closely connected with Italy, where the company acting as plaintiff has its seat. Consequently, the place of performance is the creditor’s domicile pursuant to Article 1182(3) of the Civil Code, since the obligation of the guarantor is performed through the payment of a given amount of money. Pursuant to Article 8 of Law No 218/1995 – according to which Italian courts have jurisdiction if the facts and provisions on which jurisdiction is based supervene during the proceedings – in coordination with Article 5(5) of Regulation (EC) No 44/2001 and Article 4(2), last sentence of the Rome Convention of 19 June 1980, the opening of a secondary seat in Italy by the Austrian bank after the proceedings of first instance was brought is irrelevant, absent an actual link between the object of the claim and said secondary seat.