EUPillar C-419/11 Česká spořitelna, a.s. v Gerald Feichter (First Chamber)

Summary

This case concerning Arts 5(1)(a) and 15(1) of Brussels I was referred to the CJEU in proceedings between Česká spořitelna (having its registered office in the Czech Republic) and Mr Feichter (domiciled in Austria). The Feichter company (with its registered office in the Czech Republic) issued a blank promissory note in favour of Česká spořitelna in the Czech Republic in order to guarantee its obligations under an overdraft agreement concluded between it and Česká spořitelna on the same date. The promissory note was signed on behalf of the Feichter company by its managing director, Mr Feichter. He also signed it, as an individual, on its face, marking it ‘per aval’.The information on the note re the amount, the date payable and the place of payment (Prague) was added by Česká spořitelna in accordance with an agreement on the right to complete the note, concluded on the same date. The note was not paid at the due date and Česká spořitelna brought proceedings for the making of a payment order before the Czech courts in order to obtain, from Mr Feichter, payment of the sum of the note’s amount, plus interest and commission. Mr Feichter argued that, given that he was resident in Austria, the Czech courts did not have jurisdiction. The court was uncertain as to whether its jurisdiction must be determined under the rules relating to consumer contracts under Art 15 or under Art 5(1)(a). It referred these questions to the CJEU. After finding the first question on Art 15(1) admissible, the CJEU stated that Art 15(1) applies if three conditions are met. The first one is a contracting party is to be a consumer acting outside his trade or profession. It cited its case-law on Art 13(1) of the Brussels Convention where it held that the condition refers only to the private final consumer, not engaged in trade or professional activities, and that the special jurisdiction rules for consumer contracts serve to ensure the protection of the consumer as the weaker party therefore they should not be extended to persons for whom that protection is not justified. Citing C 464/01 Gruber and C 269/95 Beinincasa, it reaffirmed that only contracts concluded outside and independently of any trade or professional activity or purpose, “solely” for the purpose of satisfying an individual’s own needs in terms of private consumption, are covered by the special rules to protect the consumer and that such protection is unwarranted in contracts concluded for the purpose of a trade or professional activity. It accordingly found that this condition is not met in the present case because Mr Feichter, as the aval giver, became the guarantor of the obligations of the company of which he is the managing director and in which he has a majority shareholding. Agreeing with AG Sharpston, it observed that he cannot be regarded as acting outside and independently of any trade or professional activity or purpose while he has close professional links with the company, such as its managing director or majority shareholder. The CJEU correctly held that since Mr Feichter cannot be considered as a consumer in this context, Art 15 is not applicable. On the second question re Art 5(1)(a), it observed that Art 5(1)(a) presupposes the establishment of a legal obligation freely consented to by one person towards another and on which the claimant’s action is based. Agreeing with AG Sharpston, it found that the relationship is a matter relating to contract because the aval giver, by signing the promissory note on its face under the indication ‘per aval’, voluntarily consented to act as the guarantor of the obligations of the maker of that promissory note. It also stated that since the place of performance of the obligation is expressly indicated on the promissory note, the referring court is required, in so far as the applicable law permits that choice as to place of performance of the obligation, to take into account that place in order to determine its jurisdiction under Art 5(1)(a).