Jana Petruchová v FIBO Group Holdings Limited.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Safjan
• ECLI: ECLI:EU:C:2019:825
• Docket Number: C-208/18
• Date: 03 October 2019
• Procedure Type: Reference for a preliminary ruling

Provisional text

JUDGMENT OF THE COURT (First Chamber)

3 October 2019 (*)

(Reference for a preliminary ruling — Judicial cooperation in civil matters — Regulation (EU) No 1215/2012 — Article 17(1) — Jurisdiction over consumer contracts — Notion of ‘consumer’ — Natural person carrying out transactions on the international exchange market through the intermediary of a brokerage company — Regulation (EC) No 593/2008 (Rome I) — Directive 2004/39/EC — Notion of ‘retail client’)

In Case C‑208/18,

REQUEST for a preliminary ruling under Article 267 TFEU from the Nejvyšší soud (Supreme Court, Czech Republic), made by decision of 13 March 2018, received at the Court on 23 March 2018, in the proceedings

Jana Petruchová

v

FIBO Group Holdings Limited,

THE COURT (First Chamber),

composed of J.-C. Bonichot, President of the Chamber, C. Toader, A. Rosas, L. Bay Larsen and M. Safjan (Rapporteur), Judges,

Advocate General: E. Tanchev,

Registrar: M. Aleksejev, Head of Unit,

having regard to the written procedure and further to the hearing on 31 January 2019,

after considering the observations submitted on behalf of

– Ms Petruchová, by M. Hostinský, advokát,

– FIBO Group Holdings Limited, by J. Komárek, advokát,

– the Czech Government, by M. Smolek and J. Vláčil, acting as Agents,

– the Polish Government, by B. Majczyna, acting as Agent,

– the European Commission, by M. Šimerdová and M. Heller, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 11 April 2019,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 17(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1).

2 The request was made in the context of a dispute between Ms Jana Petruchová and FIBO Group Holdings Limited (‘FIBO’) concerning a request for payment of the difference between Ms Petruchová’s profit and the profit she would have obtained if the order to purchase a currency, given by her, had been executed by FIBO without delay.

Legal context

Regulation No 1215/2012,

3 Under recitals 15, 16 and 18 of Regulation No 1215/2012:

‘(15) The rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile. …

(16) In addition to the defendant’s domicile, there should be alternative grounds of jurisdiction based on a close connection between the court and the action or in order to facilitate the sound administration of justice. …

…

(18) In relation to insurance, consumer and employment contracts, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules.’

4 Section 4 of Chapter II of that regulation, entitled ‘Jurisdiction over consumer contracts’, includes Articles 17 to 19 of that regulation. Article 17(1) and (3) of the regulation states:

‘1. In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this section, without prejudice to Article 6 and point 5 of Article 7, if:

(a) it is a contract for the sale of goods on instalment credit terms;

(b) it is a contract for a loan repayable by instalments, or for any other form of credit, made to finance the sale of goods; or

(c) in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer’s domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities.

…

3. This section shall not apply to a contract of transport other than a contract which, for an inclusive price, provides for a combination of travel and accommodation.’

5 Article 18(1) of that regulation provides:

‘A consumer may bring proceedings against the other party to a contract either in the courts of the Member State in which that party is domiciled or, regardless of the domicile of the other party, in the courts for the place where the consumer is domiciled.’

6 Article 19 of Regulation No 1215/2012 is worded as follows:

‘The provisions of this section may be departed from only by an agreement:

(1) which is entered into after the dispute has arisen;

(2) which allows the consumer to bring proceedings in courts other than those indicated in this section; or

(3) which is entered into by the consumer and the other party to the contract, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same Member State, and which confers jurisdiction on the courts of that Member State, provided that such an agreement is not contrary to the law of that Member State.’

7 Article 25(4) of that regulation provides:

‘Agreements or provisions of a trust instrument conferring jurisdiction shall have no legal force if they are contrary to Articles 15, 19 or 23, or if the courts whose jurisdiction they purport to exclude have exclusive jurisdiction by virtue of Article 24.’

The Rome I Regulation

8 Recitals 7, 28 and 30 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6; ‘the Rome I Regulation’):

‘(7) The substantive scope and the provisions of this regulation should be consistent with Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I) [(OJ 2001 L 12, p. 1)] and Regulation (EC) No 864/2007 of the [European] Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (“Rome II”) [(OJ 2007 L 199, p. 40)].

…

(28) It is important to ensure that rights and obligations which constitute a financial instrument are not covered by the general rule applicable to consumer contracts, as that could lead to different laws being applicable to each of the instruments issued, therefore changing their nature and preventing their fungible trading and offering. …

(30) For the purposes of this regulation, financial instruments and securities are the instruments referred to in Article 4 of Directive 2004/39/EC [of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments, amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ 2004 L 145, p. 1)].’

9 Article 1 of the Rome I Regulation, entitled ‘Material scope’, states, in the first subparagraph of paragraph 1 thereof:

‘This regulation shall apply, in situations involving a conflict of laws, to contractual obligations in civil and commercial matters.’

10 Article 6 of that regulation, entitled ‘Consumer contracts’, provides:

‘1. Without prejudice to Articles 5 and 7, a contract concluded by a natural person for a purpose which can be regarded as being outside his trade or profession (the consumer) with another person acting in the exercise of his trade or profession (the professional) shall be governed by the law of the country where the consumer has his habitual residence, provided that the professional:

(a) pursues his commercial or professional activities in the country where the consumer has his habitual residence, or

(b) by any means, directs such activities to that country or to several countries including that country,

and the contract falls within the scope of such activities.

…

4. Paragraphs 1 and 2 shall not apply to:

…

(d) rights and obligations which constitute a financial instrument and rights and obligations constituting the terms and conditions governing the issuance or offer to the public and public take-over bids of transferable securities, and the subscription and redemption of units in collective investment undertakings in so far as these activities do not constitute provision of a financial service;

…’

Directive 2004/39

11 Article 4 of Directive 2004/39, which is entitled ‘Definitions’, provides in paragraph 1:

‘For the purposes of this directive:

…

(10) “client” means any natural or legal person to whom an investment firm provides investment or ancillary services;

(11) “Professional client” means a client meeting the criteria laid down in Annex II;

(12) “Retail client” means a client who is not a professional client;

…

(17) “Financial instruments” means those instruments specified in Section C of Annex I;

…’

12 Under the heading ‘Financial instruments’, Section C of Annex I to Directive 2004/39 set out the list of financial instruments covered by that directive, including, in point 9 of that section, ‘financial contracts for differences’.

13 Under the heading ‘Categories of clients considered as professionals’, Section I of Annex II to Directive 2004/39 stated:

‘The following should all be regarded as professionals in all investment services and activities and financial instruments for the purposes of the directive:

1. Entities which are required to be authorised or regulated to operate in the financial markets. The list below should be understood as including all authorised entities carrying out the characteristic activities of the entities mentioned …:

(a) Credit institutions

(b) Investment firms

(c) Other authorised or regulated financial institutions

…

2. Large undertakings meeting two of the following size requirements on a company basis:

– balance sheet total: EUR 20 million;

– net turnover: EUR 40 million;

– own funds: EUR 2 million.

3. National and regional governments, public bodies that manage public debt, Central Banks, international and supranational institutions such as the World Bank, the International Monetary Fund...