Referring court and Member State
Germany, First Instance, Landgericht Düsseldorf
Summary
This case on the interpretation of Art 5(3) of Brussels I was referred to the CJEU in German proceedings between Mr Melzer (domiciled in Berlin, Germany) and MF Global (a brokerage company established in the UK) concerning a claim for damages in relation to trading in stock market futures. Mr Melzer was solicited as a client by telephone and his file was managed by WWH (a company established in Düsseldorf, Germany). WWH opened an account for him with MF Global which traded in futures for him in return for remuneration. He had made payments into a specific account in London but repaid less, so he claimed the difference, EUR 171, 075.12, as damages. He argued that he had not been sufficiently informed about the risks of trading futures on stock exchanges either by WWH or by MF Global and not effectively informed about the ‘kick-back’ agreement entered into between MF Global and WWH, and the conflict of interest which results from it. He claimed that MF Global was liable for damages for assisting WWH deliberately and unlawfully to cause unfair harm. The action was brought in Düsseldorf. The court considered that the German courts have jurisdiction under Art 5(3) of Brussels I as the damage occurred in Germany. But it was unsure about its local jurisdiction as the loss was sustained in Berlin, not Düsseldorf. It considered that since MF Global only trades in London, Düsseldorf courts’ jurisdiction may be based only on the activities of WWH and that such a connecting factor as an alternative to the place where the harmful event, committed by joint perpetrators or accomplices, occurred, was admissible under German civil procedure and conceivable in the present case. It asked the CJEU whether Art 5(3) of Brussels I permits the courts of the place where a harmful event occurred, which is imputed to one of the presumed perpetrators of damage who is not a party to the dispute, to take jurisdiction over another presumed perpetrator of that damage who has not acted within the jurisdiction of the court seised. The CJEU firstly noted that despite the contractual nature of the relationship between Melzer and MF Global, the action was based solely on tort. After reaffirming the principles it established in its case-law on Art 5(3), by agreeing with AG Jӓӓskinen, the CJEU stated that the question is not the identification of the place where the damage occurred. It is rather the interpretation of the concept of ‘the place of the event giving rise to the damage’ in a situation where only one of the presumed perpetrators of an alleged harmful act is sued before a court within whose jurisdiction it has not acted. The CJEU observed that in that situation the connecting factor based on the defendant’s acts is absent and Art 5(3), in accordance with the objectives and general scheme thereof, precludes the event giving rise to the damage from being regarded as taking place within the jurisdiction of that court. By interpreting the special jurisdiction rule in Art 5(3) restrictively as an exception to Art 2(1), the CJEU refused to extend the application of Art 5(3) to co-perpetrators. It, by considering Recital 2, stated that the use of national legal concepts in Brussels I would give rise to different outcomes among the Member States and therefore it did not find “the reciprocal attribution to the place where the event occurred” permitted. It also considered in its judgment that the attribution of jurisdiction to hear disputes against persons who have not acted within the jurisdiction of the court seised remains possible under Art 6(1) of Brussels I, if the conditions laid down therein, in particular the existence of a connecting factor, are fulfilled. It took too long for the CJEU to reach a judgment in this case (2 years).