Summary
Pursuant to Article 27 of Regulation (EC) No 44/2001, Italian courts do not have jurisdiction over an action for damages having the same object as an action seeking declaratory relief aimed at ascertaining that no liability exists (domanda di accertamento negativo), previously brought before German courts by the defendant in the Italian proceedings. Pursuant to Article 5(3) of Regulation (EC) No 44/2001, Italian courts do not have jurisdiction over an action for damages brought by the heirs of an Italian citizen against the legal representative of the latter, who has not accepted the office of administrator of the deceased’s assets (esecutore testamentario) but has disposed of the deceased’s real estate. In fact, both the place of the event giving rise to the damage and the place of the damage are located exclusively in Germany and Austria since the real estate is located there, the deceased was resident in Germany, and the bank that received the proceeds of the sale has its seat in Austria. Pursuant to Article 5(1)(a) of Regulation (EC) No 44/2001, Italian courts do not have jurisdiction over an action brought by the heirs of an Italian citizen to ascertain that a loan agreement entered into by the deceased with an Austrian bank is null and void, since, according to said provision, the obligation that is relevant for the purpose of determining the place of performance is the main obligation, i.e., with reference to a loan agreement, the obligation to deliver the loan amount to the borrower, and said obligation should not have been performed in Italy. Nor does Article 5(3) of said Regulation apply since the disclosure obligation that has been breached is contractual in nature, and therefore cannot give rise to tortious liability. In a case concerning a loan agreement entered into by a consumer domiciled in Austria with an Austrian bank, Italian courts do not have jurisdiction pursuant to Articles 15 et seq. of Regulation (EC) No 44/2001 over an action brought by the heirs of the consumer – who are domiciled in Italy – against the bank. In fact, even though the State where the plaintiff-consumer is domiciled shall be identified at the time of lodging of the statement of claim and therefore by reference to the domicile of the heirs, and not to that of the deceased, in order for the provisions on special jurisdiction to apply, the person who pursues professional activities shall direct said activities to the Member State where the consumer is domiciled or to several States including that Member State. Article 22 of Regulation (EC) No 44/2001 does not apply to an action for nullity of a declaration of destination (dichiarazione di destinazione) of a general mortgage (ipoteca astratta) granted over real estate located in Germany in favour of the lender, an Austrian bank, since in rem security is excluded from the scope of application of said provision. On the contrary, Article 5(1)(b) of said Regulation applies. According to this provision, Italian courts do not have jurisdiction since the mortgage is ancillary to the loan agreement, in which the characteristic obligation, i.e. the payment of the loan amount, shall be performed in Austria. Pursuant to Article 50 of Law No 218/1995, Italian courts have jurisdiction over the actions for reduction (domande di riduzione) of the donations made by the deceased, an Italian citizen, to the woman living with him, an Austrian citizen resident in Austria.