Summary
An Italian company in liquidation brought proceedings against multiple defendants, financial intermediaries and some of their directors, variously domiciled (in Germany, UK and Italy) seeking i) a declaration of nullity of the agreements pursuant to which it acquired the bonds issued by the German bank and sold by the company licensed to operate as a financial intermediary by the United Kingdom Financial Services Authority, subscribed, on the “primary” market, for all of the bonds in question issued by Commerzbank., on the grounds of an imbalance of the contract, insufficient or a lack of consideration, and consequently, the recovery of sums paid but not due, namely the restitution of the sum paid in order to execute that purchase; and ii) a declaration of the liability of its parent company, also governed by Italian law, on the basis of Art. 2497 of the Italian Civil Code, in that such company infringed the principles of sound administration of companies and businesses by leading its subsidiary to conclude the transactions in question and is therefore required to make good the damage allegedly suffered by the claimant as a result of that mismanagement.
As some of the defendants contended that the Italian court lacked jurisdiction, because, inter alia, the jurisdiction clause contained in the prospectus assigned jurisdiction to the English courts, the Supreme Court of Cassation, upon request of the claimant, referred the following questions to the European Court of Justice for a preliminary ruling on Arts. 6(1), 5(1)(a) and 23 of Regulation (EC) No 44/2001:
1. Can the connecting link between different actions referred to in Article 6(1) of Regulation No 44/2001 be said to exist where the subject-matter of the heads of claim put forward in those actions and the basis for the pleas in law raised therein are different and there is no relationship between them of subordination or logical and legal incompatibility, but the upholding of one of those actions is nonetheless potentially capable, in practice, of affecting the extent of the interest on the grounds of which the other action has been brought?
2. Can the requirement that the agreement conferring jurisdiction be in written form, as laid down in Article 23(1)(a) of Regulation No 44/2001, be said to be satisfied where such an agreement is inserted into the [prospectus] that has been created unilaterally by a bond issuer, with the effect that the prorogation of jurisdiction is made applicable to disputes involving any future purchaser concerning the validity of those bonds? If not, can it be said that the insertion of that agreement into the document governing a bond issue which is intended for cross-border movement corresponds to a form which accords with usages in international trade or commerce within the terms of Article 23(1)(c) of that regulation?
3. Should the expression “matters relating to a contract”, as used in Article 5(1) of Regulation No 44/2001, be understood to refer only to disputes in which the applicant intends to assert before the court the binding legal relationship arising from the contract and to disputes which are closely linked to that relationship, or must it be extended so as also to include disputes in which the applicant, far from invoking the contract, disputes the existence of a legally valid and binding contractual relationship and seeks to obtain a refund of the amount paid on the basis of a document which, in its view, is bereft of legal value?
(cfr. Judgment 20 April 2016, Profit Investment Sim SpA v Ossi et al., case C-366/13)