Opinion of Advocate General Campos Sánchez-Bordona delivered on 2 April 2020.

• Jurisdiction: European Union
• Celex Number: 62019CC0343
• ECLI: ECLI:EU:C:2020:253
• Date: 02 April 2020
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 2 April 2020 (1)

Case C‑343/19

Verein für Konsumenteninformation

v

Volkswagen AG

(Request for a preliminary ruling from the Landesgericht Klagenfurt (Regional Court, Klagenfurt, Austria))

(Preliminary ruling proceedings — Regulation (EU) No 1215/2012 — Jurisdiction in matters relating to liability in tort, delict or quasi-delict — Place of the event giving rise to the harm — Manipulation of emissions values in car engines)

1. In 1976, the Court addressed for the first time a question that the legislature had left open in Article 5(3) of the Brussels Convention. (2) The Court was required to rule on whether, in order to determine jurisdiction, the ‘place where the harmful event occurred’ was the place where the damage occurred or the place where the event which gave rise to that damage occurred. (3)

2. For the purpose of providing an interpretation which would be useful to the system for the allocation of international jurisdiction among the Member States, the Court retained the possibility of using both connecting factors. The solution (which was the most reasonable for that case) became a paradigm. It makes sense at a purely theoretical level, given that any non-contractual liability requires an event, damage, and a causal link between the two.

3. The solution is not as clear in practice, except in simple cases, like that resolved by the judgment in Bier. That is particularly true of damage which, by its very nature, has no material expression: that occurs with harm which does not affect the physical integrity of a specific person or thing but rather assets in general terms.

4. The Court, which has addressed those issues on a number of occasions and from different angles, (4) now has the opportunity to refine its case-law on Article 7(2) of Regulation (EU) No 1215/2012. (5)

I. Legal framework: Regulation No 1215/2012

5. Recital 16 of Regulation No 1215/2012 reads:

‘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. The existence of a close connection should ensure legal certainty and avoid the possibility of the defendant being sued in a court of a Member State which he could not reasonably have foreseen. This is important, particularly in disputes concerning non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation.’

6. Chapter II (‘Jurisdiction’) contains a section headed ‘General provisions’ (Articles 4, 5 and 6) and another headed ‘Special jurisdiction’ (Articles 7, 8 and 9).

7. Pursuant to Article 4:

‘1. Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.

…’

8. Under Article 7:

‘A person domiciled in a Member State may be sued in another Member State:

…

(2) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur;

…’

II. Main proceedings and question referred for a preliminary ruling

9. The Verein für Konsumenteninformation (‘VKI’) is a consumer organisation established in Austria. Its company objects include, inter alia, the bringing of legal actions in pursuit of consumers’ claims, which consumers assign to them for that purpose.

10. On 6 September 2018, VKI brought an action before the referring court against Volkswagen AG, a company governed by German law and established in Germany, where it manufactures motor vehicles.

11. In its action, VKI pursues claims for damages assigned by 574 purchasers of vehicles. VKI also seeks a declaration establishing the liability of Volkswagen for as yet unquantifiable future damages. Both claims are linked to the installation in the purchased vehicles of a defeat device (manipulative software) which masked, on the test bench, the true exhaust emission values, contrary to provisions of EU law. (6)

12. VKI argues that all the consumers who have assigned their claims purchased in Austria, from either a commercial car dealer or a private seller, vehicles fitted with an engine developed by Volkswagen. Those purchases were made before the public disclosure, on 18 September 2015, of the emissions manipulation perpetrated by the manufacturer.

13. In VKI’s submission, the damage incurred by the vehicle owners consisted of the fact that, had they been aware of the alleged manipulation, they would probably not have purchased the vehicles or they would have done so at a lower price. The difference between the price of a manipulated vehicle and the price actually paid constitutes a recoverable loss incurred through reliance on an expectation. In the alternative, VKI bases its claim on the fact that the value of a manipulated vehicle on the automobile market and on the used car market is much lower than the price of a vehicle that has not been manipulated.

14. VKI further submits that the damage incurred by the purchasers has been exacerbated by increased fuel consumption, poorer driving or engine performance or greater depreciation. In addition, it is to be expected that there will be a further reduction in the market value of the affected vehicles, which run the risk of suffering further adverse effects, such as driving bans on the vehicles concerned or the withdrawal of authorisation to be used in road traffic. At the time when the action was lodged, some of that damage was not yet quantifiable or had not yet occurred and therefore VKI’s claim in this respect is merely an application for a declaration.

15. From the perspective of the international jurisdiction of the court with which it has lodged its action, VKI relies on Article 7(2) of Regulation No 1215/2012.

16. Volkswagen requests that the forms of order sought by VKI be dismissed and contests the international jurisdiction of the referring court.

17. Against that background, the Landesgericht Klagenfurt (Regional Court, Klagenfurt, Austria) has referred the following question for a preliminary ruling:

‘Is point 2 of Article 7 of Regulation [No 1215/2012] to be interpreted as meaning that, in a situation such as that in the main proceedings, the “place where the harmful event occurred” may be construed as the place in a Member State where the damage occurred, when that damage consists exclusively of financial damage that is the direct result of an unlawful act committed in another Member State?’

III. Analysis

A. Introduction

18. Article 7(2) of Regulation No 1215/2012, which provides applicants with the choice of an alternative jurisdiction to the general jurisdiction (the courts for the Member State in which the defendant is domiciled, provided for in Article 4(1) of that regulation), has always presented a challenge to those interpreting it. (7)

19. The number and variety of situations in which an action ‘in matters relating to tort, delict or quasi-delict’ can be brought has meant that the Court has been required to deal with the interpretation of the provision in very different contexts and, over time, in contexts which also differ from those envisaged when the provision was adopted. (8) The Court has had to adapt and enhance that interpretation in response to references for a preliminary ruling from Member States. (9)

20. There are, however, a number of constant guidelines for the interpretation of the provision: the central function of the principles which inform it, namely the principle that rules must be foreseeable (for the parties) and the principle of proximity between the court with jurisdiction and the dispute; the concern with maintaining the practical effect of the special rule within the framework of the system for the delimitation of jurisdiction, which does not, however, permit a broad interpretation; (10) and the neutrality of that rule in relation to the parties. In any event, the interpretation is autonomous and is independent of the definition of ‘event’ and ‘damage’ in national law and of the substantive rules applicable to civil liability. (11)

21. Article 7(2) of Regulation No 1215/2012 assumes a particularly close connection between the court and the dispute. That connection serves to ensure legal certainty and to prevent a person from being sued in a court of a Member State which that person could not reasonably have foreseen. It also enables the sound administration of justice and the efficacious conduct of proceedings. (12)

22. Where the unlawful conduct and its consequences are situated in different Member States, the jurisdiction criterion splits into two on the basis that, in matters relating to non-contractual liability, both places have a significant connection to the dispute. In those circumstances, the applicant can choose between two jurisdictions when lodging his or her action.

23. The criterion laid down in Article 7(2) of Regulation No 1215/2012 thus retains its practical effect, which would be nullified if the provision were interpreted as referring only to the place of the event giving rise to the harm, since the latter is usually the same as the place of the defendant’s domicile. (13) The dual jurisdiction rule has not been abandoned in either case. (14)

24. Article 7(2) of Regulation No 1215/2012 was not intended as a rule of jurisdiction for the protection of the applicant. Although, from a systematic point of view, it could be construed as offsetting the rule actor sequitur forum rei, (15) that does not mean that it should be applied systematically in a way which favours the courts of the victim’s State of domicile (forum actoris). (16) That has been permitted only where (and because) the victim’s place of domicile is also the place where the damage occurred. (17)

25. Based on those factors in combination, the Court drew up guidance for the interpretation of...