Summary
Pursuant to Art. 15(c) of Regulation (EC) No 44/2001 of 22 December 2000, Italian courts have jurisdiction over the claim brought by a woman residing in Italy against the Luxembourg branch of the Italian bank where she maintained a bank account whose funds were used to purchase, at suggestion of bank executives, Argentinean bonds (whose repayment was interrupted due to the harsh financial crisis affecting the country) seeking, preliminarily, to establish that the clause contained in the depository contract with the Luxembourg branch providing for the choice of Luxembourg law and the jurisdiction of Luxembourg courts is abusive and, as to the merits, to obtain a declaration of invalidity of all the purchase orders of Argentinean bonds and the restitution of the amount paid plus interests (as determined by law), possibly due as damages, and, as an alternative, a declaration of invalidity of a single order and the restitution of the equivalent value less the amount already received.
Contrary to the opinion of the court of first instance, given that the Luxembourg branch has no legal autonomy and therefore, according to Directive 1977/780/EEC (and to Art. 1(e) of Legislative Decree 1 September 1993 No 385 on credit institutions - Testo unico bancario), its activities must be attributed to the bank from which it depends, the depository contract must be regarded as concluded with the Italian bank (having its real and legal seat in Italy), rather than with the foreign branch, even thought the purchase orders were executed outside the Italian borders for (alleged) privacy reasons. This suffices to exclude the jurisdiction of Luxembourg courts resulting from the choice-of-court agreement included in the depository contract, even if specifically approved by the account holder, for the special provisions on jurisdiction over consumer contracts (Art. 15 of Regulation EC No 44/2001) shall prevail over any prorogation agreement, the circumstance that the financial services were de facto provided outside Italy by the Luxembourg branch being irrelevant.