Referring court and Member State
Austria, First Instance, Handelsgericht Wien
Summary
Mr Kolassa, domiciled in Vienna sued Barclays Bank, established in London for damages based on liability of the bank as a result of the loss in value of a financial investment made by him through certificates issued by the bank. Certificates had been in the form of bearer bonds and sold, on the basis of a previously distributed prospectus, by Barclays only to institutional investors who then resold them to individual investors. Kolassa had instructed his bank to acquire a certain amount of bonds. Under the general conditions, the value of the bonds was linked to the value of a portfolio and administered by a different company. The value of the certificates significantly decreased and Kolassa brought an action in Vienna seeking the payment of damages on the basis of the contractual, pre-contractual and tortious/delictual liability of Barclays and maintaining that the court had jurisdiction under Art 15(1)(c) or under Art 5(1) and (3) of Brussels I. Barclays disputed the allegations and the court’s jurisdiction. The court asked several questions to the CJEU. 1) Are the conditions in Art 15(1) met? The CJEU found that no contract had been concluded between the consumer, who acquired a bearer bond from a third party professional, and the issuer of the bond and therefore jurisdiction may not be invoked under Art 15(1). 2) Are the conditions in Art 5(1) met? The CJEU observed that a legal obligation freely consented to by Barclays with respect to Kolassa is lacking even if, under the national law applicable, Barclays has certain obligations towards him and therefore held that jurisdiction may not be invoked under Art 5(1). 3) May the liability of the issuer of a certificate on the basis of the prospectus relating to it and of the breach of other legal information obligations incumbent on the issuer be a matter related to rights in tort, delict or quasi-delict within the meaning of Art 5(3), thus allowing jurisdiction to be established for the courts where the applicant is domiciled on the basis that that is the place where the harmful event occurred or may occur? The CJEU reiterated that the concept in Art 5(3) covers all actions which seek to establish the liability of a defendant and do not concern matters relating to a contract within the meaning of Art 5(1). The CJEU noted that the mere fact that the applicant has suffered financial consequences does not justify the attribution of jurisdiction to the courts of the applicant’s domicile if both the events causing loss and the loss itself occurred in the territory of another MS, as was the situation in the case giving rise to the judgment in C-168/02. The events giving rise to the damage claimed took place where Barclays had its seat (UK) and that the place where the loss occurred was where the investor suffered it. It ruled that the courts where the applicant is domiciled have jurisdiction, on the basis of the place where the loss occurred, particularly when the loss occurred directly in the applicant’s bank account held with a bank established within the area of jurisdiction of those courts. 4) Must the court, in determining jurisdiction, conduct a comprehensive taking of evidence or start from the premiss that the facts asserted by the applicant are correct? The CJEU held that it is not necessary to conduct a comprehensive taking of evidence in relation to disputed facts, but it is permissible for the court seised to examine its jurisdiction in the light of all the information available to it, including, where appropriate, the allegations made by the defendant. The CJEU showed respect for the independence of the national courts in determining their jurisdiction by allowing them to take account of the defendant’s allegations when deciding whether or not they have jurisdiction under Brussels I. The AG had correctly encouraged the CJEU to do so by saying that Art 24 of Brussels I requires defendants to be able to present their arguments against the national court’s jurisdiction.