EUPillar G.J., S.J., H.J. and M.J. v. Petercam SA and Petercam Horizon L

Summary

The origin of the present dispute lies in the purchase by the claimants of 382,400 shares in the SICAV Petercam Horizon L (PHL) for the total sum of 39,119,520 EUR on 12 December 2005. In 2008, PHL incurred substantial losses. The claimants sue the defendants, PHL and the Belgian company Petercam, in damages in the provisional amount of 15,095,784 EUR (plus interests). They argue that managerial errors were made by PHL and that they had given Petercam a management mandate over their assets, for which it is also liable. Petercam says that it merely intervened to place the orders, but that the claimants decided on their own to invest in PHL. PHL, a company incorporated in Luxembourg, raises objections as to the international jurisdiction of the Belgian courts. The claimants argue that the Belgian courts have jurisdiction on the basis of Art. 6(1). In their view, the errors committed by Petercam and PHL fall under the same managerial mission. If two different courts had to rule on their management, this could lead to irreconcilable decisions. The ECJ has ruled that “in order that decisions may be regarded as contradictory it is not sufficient that there be a divergence in the outcome of the dispute, but that divergence must also arise in the context of the same situation of law and fact” (cf. C-539/03, Roche Nederland, § 26; C-145/10, Painer, § 79). The brokerage firm Petercam SA and the SICAV PHL fulfil entirely different missions. A SICAV doesn’t manage the assets of the claimants. It only manages its own assets (even if, in the end, its shareholders are supposed to benefit from it). PHL is governed by the Luxembourg Act of 20 December 2002 on Collective Investment Organisms and is supervised by the Luxembourg Supervising Commission for the Financial Sector. Petercam is governed by the Belgian Act of 6 April 1995 on the legal status and supervision of investment firms, and is supervised by the Belgian National Bank. Petercam’s management mandate related only to the assets of the claimants and not to the assets of PHL. Therefore, the situation as regards both defendants isn’t the same in law and in fact. The judicial decisions can’t be irreconcilable, only contradictory. The claimants then argue that PHL can be sued in Belgium on the basis of Art. 16(1) Brussels I. However, the purchase of shares has to do with the asset management of the company, and not with its commercial management (its commercial activity being the investment of the assets it has at its disposal). The condition of Art. 15(1)(c) Brussels I isn’t satisfied so that Art. 16(1) isn’t applicable. Finally, Art. 5(3) Brussels I grants jurisdiction to the courts for the place where the harmful event occurred. The expression ‘place where the harmful event occurred or may occur’ in Article 5(3) of Regulation No 44/2001 is intended to cover both the place where the damage occurred and the place of the event giving rise to it, so that the defendant may be sued, at the option of the applicant, in the courts for either of those places (C-523/10, Wintersteiger, § 19). The term cannot be construed so extensively as to encompass any place where the adverse consequences can be felt of an event which has already caused damage actually arising elsewhere. The term "place where the harmful event occurred" does not, on a proper interpretation, cover the place where the victim claims to have suffered financial damage following upon initial damage arising and suffered by him in another Contracting State (cf. C-364/93, Marinari, §§ 14 and 21). The claimants argue that they suffered losses on their accounts in Brussels and that the management teams of the defendants were physically located in Brussels, where all communications, reports, etc. were drawn up. However, if the assets of a SICAV incur losses, these losses materialise at the fund itself, not within the assets of its shareholders. The fund PHL has its seat in Luxembourg. Only the Luxembourg courts have jurisdiction.