Which Court is Competent for Prospectus Liability Cases? The CJEU Rules in Kolassa (Case C-375/13)
by Matthias Lehmann, University of Bonn
On 28 January 2015, the CJEU has decided for the first time on the question of jurisdiction over alleged liability for a wrong prospectus. The Kolassa judgment is of paramount importance for the future handling of investor claims. In a nutshell, the CJEU holds that the court at the place where the investor is domiciled and has its damaged bank account is competent to decide on the claim under Art 5(3) Brussels I Regulation (now Art 7(2) Brussels Ia Regulation).
The Facts (as Easy as Possible)
The case concerned an Austrian investor who had bought a certificate from an investment firm in Austria. The certificate had been issued by Barclays UK, which had also distributed an accompanying prospectus, inter alia in Austria. After the value of the certificate had been wiped out completely, the investor brought a claim against Barclays before an Austrian court, alleging that Barclays’ prospectus would not have given correct information regarding the way in which the money was to be invested. The Austrian court questioned whether it had jurisdiction to hear the case and submitted a reference for a preliminary ruling.
The Decision (in a Bit more Detail)
The CJEU first rejects to consider prospectus liability as a matter relating to a consumer contract under Art 15 Brussels I Regulation (now Art 17 Brussels Ia Regulation). The Court also rules out a characterization as a contract matter under Art 5(1) Brussels I Regulation (now Art 7(1) Brussels Ia Regulation). This is understandable as the issuer arguably has not freely assumed an obligation towards the investors, at least not with regard to the accurateness of the content of the prospectus. It is astounding, however, that the CJEU refuses a final qualification and asks the Member State tribunal to verify whether there is a contractual obligation or not. The judgment does not provide any guidance on the criteria the national tribunal should use in making such a determination. This is rather unfortunate, given that the term ‘contract’ must be given an EU autonomous meaning.
In principle, the Court accepts the proposition that prospectus liability is a matter relating to a tort, delict or quasi-delict in the sense of Art 5(3) Brussels I Regulation (now Art 7(2) Brussels Ia Regulation). Using its twin approach to localise the harmful event (see Mines de potasse, Case 21/76, aka as “Bier”), the Court considers the place of the event giving rise to the damage and the place where the damage occurred.
With regard to the event giving rise to the damage occurred, the CJEU denies that it took place in Austria because all relevant decisions as to the arrangement of the investments and the content of the prospectus had been taken by Barclays in the UK. The Court also highlights that the prospectus had originally been drafted and distributed there. It follows by implication that the place of the causal event is at the seat of Barclays unless the prospectus has originally been drafted and distributed elsewhere.
The most important and interesting part of the judgment concerns the localisation of damage. The CJEU first reminds of its judgment in Kronhofer (C-168/02), where it had ruled out the domicile of the investor as such as the place of financial damage. It goes on to say, however, that the courts in the country of the investor’s domicile have jurisdiction ‘in particular when the loss occurred itself directly in the applicant’s bank account held with a bank established in the area of jurisdiction of those courts’ (margin no 55).
This reference to the place of the establishment of the bank that manages the damaged account is remarkable. It coincides with what has been said earlier about the location of economic loss (see Lehmann, (2011) 7 Journal of Private International Law 527). One may wonder, though, why the CJEU also refers to the domicile of the investor. Does the Court want to suggest that it plays a role in determining the place of damage? This would be rather surprising. Perhaps the explanation lies in the way the submitting tribunal had framed the preliminary question, which focused entirely on the question whether the investor’s domicile can be a basis of jurisdiction. The best way to read the Court’s answer is probably that the damage arises at the domicile only under the condition that the investor’s bank account is located there. Regrettably, the judgment still leaves room for speculation which court would be competent if the bank account from which the investor paid for the securities were located outside his domicile.
Particularly noteworthy are the criteria that the judgment does not mention. The Advocate General had suggested to consider the place of publication of the prospectus as an ‘indicator’ for where the harmful event occurred (see Conclusions by GA Szpunar of 3 September 2014, para 64 et seq). Similarly, many authors have proposed to look at the market on which the securities have been offered. The CJEU does not even discuss these views. One must understand its silence as rejection.
Furthermore, the judgment may have far reaching implications for conflict of laws. As is well known, Art 4(1) Rome II Regulation uses the same criterion of the ‘place where the damage occurred’ that is the second prong of the tort jurisdiction under Art 5(3) Brussels I Regulation (now Art 7(2) Brussels Ia Regulation) in order to determine the applicable tort law. If parallel interpretation still is a goal and Recital 7 of the Rome II Regulation should not be devoid of all meaning, then it seems that the Kolassa ruling must be followed in the area of conflict of laws as well. Yet this would cause a complete dispersal of the law applicable to prospectus liability. An issuer would potentially be liable under the laws of all countries of the world in which investors are domiciled and have bank accounts. Whether and to what extent this result can be avoided by using the escape clause in Art 4(3) Rome II Regulation is doubtful. The better way seems to introduce a special conflicts rule for financial torts (on this issue, see Lehmann, Revue critique de droit international privé 2011, 485).
For Those Not Interested in Financial Law
The Court also rules on a point that is of general interest outside the special area of prospectus liability: To which extent does a court have to take evidence in order to determine its jurisdiction? The answer given by the CJEU is somewhat sibylline. On the one hand, it rules that the tribunal seised does not have to enter into a comprehensive taking of evidence at this early stage of the procedure and may ‘regard as established … the applicant’s assertions’ (paras 62 and 63). At the same time, it requires the national tribunal to examine its international jurisdiction ‘in the light of all the information available to it, including, where appropriate, the defendant’s allegations’ (para 64). Can somebody make sense of this, please?
Regarding Professor Lehmann’s final question, it should be noted that the ECJ limited its opinion to those cases where the disputed facts are relevant “both to the question of jurisdiction and to the existence of the claim”. In the case of forum delicti the existence of the damage and its localization have such double relevance pursuant to Article 7(2) of the new Brussels I Regulation and Article 4(1) of the Rome II Regulation. I am inclined to interpret the judgment as to mean that for the purposes of jurisdiction the applicant’s assertions of such facts can be assumed to be correct unless the defendant can easily and summarily show that they are incorrect. This is practical from procedural viewpoint and provides normally an advantage to the applicant, but might sometimes be to his disadvantage. According to the law of many – probably most – countries, a dismissal due to lack of jurisdiction does not hinder a new action, whereas if the action I allowed to proceed but is dismissed after a consideration of the merits, the decision gets the effect of res judicata, both in the Member State of the court and in the other countries bound by the Brussels/Lugano rules.
Two brief comments on art. 5(3) of the Brussels I Regulation.
As to the place of the event giving rise to the damage, the ECJ concluded that the relevant place is where the prospectus was originally drafted and distributed. This outcome allows to make a step forward in the general debate about the correct location of the harmful event whenever the latter is fragmented and located in different Member States. Indeed, I wonder whether with this judgment the ECJ is confirming a more general view, according to which when the damage is the result of a causal chain of harmful events, relevance should be given only to the first element thereof, i.e. the place where the harmful event originated (e.g., in the case Shevill, the place where the publisher is established).
As to the localisation of damage, I wonder whether this decision is coherent with the rationale underlying art. 5(3) of the Regulation and the ECJ previous interpretations. I agree with Professor Lehmann that investor’s domicile is taken into account only under the condition that the investor’s bank account is located there, and not as such. However, the criterion itself (i.e. the place of the establishment of the bank that manages the damaged account) does not easily constitute a connecting link sufficiently close to the dispute and sufficiently foreseeable by the defendant. Moreover, this place is deliberately chosen by investor or the intermediary and then make the defendant potentially exposed to a multiplicity of actions in several States, thus creating additional incentives for forum shopping.