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 )

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:

…

…’

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?’

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 Article 7(2) of Regulation No 1215/2012 in relation to the ‘place where the damage occurred’; in some instances this guidance was intended to be general and in others it concerned specific matters:

26.

Where the alleged damage is merely financial, the Court laid down a number of criteria to which I shall refer below.

27.

In order to reply to the referring court’s question, which is similar to the earlier question which gave rise to the judgment in Universal, it is necessary, at the outset, to determine whether the alleged damage is initial or consequential and whether that damage is material or purely financial. ( 22 ) It is also necessary to determine whether the individuals who assigned their claims to VKI, as the persons to whom the compensation sought is payable, are direct or indirect victims.

28.

Subsequently, based on the classification of the damage, it will be necessary to establish the relevant place for the purposes of jurisdiction.

29.

The referring court also asks whether the result reached in the previous task should be corrected in the light of considerations of foreseeability and proximity. I believe that it is important to point out, at this juncture, that an affirmative answer would entail a substantial alteration of the interpretation and application of Article 7(2) of Regulation No 1215/2012, which have prevailed thus far.

30.

In their observations, the parties involved have raised further uncertainties regarding the interpretation of the provision but, since those uncertainties are not set out in the order for reference, I shall not state my view in that regard. ( 23 )

31.

The referring court attributes the damage to the software which, when installed in the vehicle, constitutes a defect in that vehicle. The referring court characterises that damage as initial damage, while the reduction in the purchaser’s assets is merely financial damage. ( 24 )

32.

The referring court also draws attention to the question of who sustained the damage: the consumers represented by VKI or everyone who purchased the cars, beginning with the first dealers and importers. In the latter situation, the individuals whose claims VKI is pursuing, who are at the end of the chain, would not be direct victims.

33.

When examining the nature of the damage, a distinction should be drawn between the place of the events giving rise to the damage and the place where the consequences (damage) of those events arose:

34.

On that basis, the event giving rise to the damage in this case consists of the installation, during the vehicle manufacturing process, of software which alters the vehicle’s emissions data.

35.

The damage derived from that event is, in my view, initial and financial.

36.

In normal circumstances (the absence of any defect), the purchase of an item contributes to the assets of which that item becomes part a value which is at least equivalent to the outgoing value (which, in the case of a purchase, is represented by the price paid for the item).

37.

If, at the time of purchase, the vehicle’s value is lower than the price paid because that vehicle is purchased with an original defect, the price paid does not match the value received. The difference between the price paid and the value of the tangible goods received in return causes a financial loss which occurs at the same time as the purchase of the vehicle (but which, however, will not be discovered until later).

38.

Does the existence of the vehicle as a tangible object preclude classification of the harm as financial? I do not think so. When the vehicle’s actual characteristics were made public, purchasers did not discover that they had a lesser vehicle or another vehicle but rather a vehicle with a lower value: in short, a smaller asset. The vehicle, as a physical object, symbolises the reduction in assets and makes it possible to identify the origin of that reduction. However, in this case, that does not alter the intangible essence of the loss which the software manipulation caused to purchasers.

39.

That financial damage is, I repeat, initial and not consequential: it is derived directly from the event giving rise to the damage (manipulation of the engine) and not from earlier damage sustained by the applicant as a result of the same event.

40.

As regards the nature of the victims, I believe that the persons who purchased the cars (and assigned their claims to VKI for it to pursue in the courts) are direct victims for the purposes of Article 7(2) of Regulation No 1215/2012. The damage they allege does not follow on from earlier damage sustained by other individuals before them.

41.

The loss of value of the vehicles did not become a reality until the manipulation of the engines was made public. In some instances, the applicants may be end users who obtained the vehicle from another, previous buyer; however, the latter did not experience any loss because, at that time, the damage was latent and was not disclosed until later when it affected the then owner. Therefore, it is not possible to describe the damage as being passed on from the original buyers to successive buyers.

42.

The national court asks only about the determination of the place where the damage arose and not about the place where the event giving rise to the damage occurred. In the order for reference, the national court makes clear that, in its opinion, the event triggering (the event giving rise to) the damage occurred in the place where the manipulated vehicles were manufactured, that is to say, Germany.

43.

Accordingly, in line with the general rule, the vehicle manufacturer, as a person domiciled in Germany, would, in principle, be subject to the jurisdiction of the courts of that Member State. However, since the basis for the claim is a tortious, delictual or quasi-delictual act, it is also possible for that person to be sued in another Member State, specifically, in the courts for the place where the damage arose.

44.

As I have pointed out, VKI’s action is not based on material damage to a person or a thing but rather on damage that is merely financial.

45.

In the Court’s case-law, the place where the damage occurred is the place where the adverse effects of an event actually manifest themselves. ( 27 )

46.

The absence of physical damage impedes the identification of that place and creates uncertainties from the start of the procedure. The absence of physical damage also creates uncertainty about whether it is appropriate to use that place as a rule of jurisdiction for the purposes of Article 7(2) of Regulation No 1215/2012. It is unsurprising that, in the course of previous references for a preliminary ruling, it was suggested that the Court abandon the choice between the place of the event giving rise to the damage and the place where the damage occurred in respect of situations involving financial loss alone. ( 28 )

47.

In truth, there are arguments in favour of that suggestion. The dual jurisdiction rule is not a requirement in the application of the provision; it is justified because, and if, the attribution of jurisdiction meets ‘any objective need as regards evidence or the conduct of the proceedings’. ( 29 ) The interpretation laid down in the judgment in Bier did not seek to establish more than one court with jurisdiction for actions concerning non-contractual liability and instead its aim was not to exclude relevant connecting factors from the analysis of the important elements — the event and the damage — in those actions.

48.

In that regard, the option of the ‘place where the damage occurred’ should perhaps not apply in certain circumstances: ( 30 ) (i) where the nature of that damage is such that it is not possible to ascertain where it occurred by applying a simple test; ( 31 ) (ii) where the place of the damage must be established by resorting to fictions; ( 32 ) and (iii) where the examination tends to result in an unforeseeable place or a place which can be manipulated by the applicant. ( 33 )

49.

In that connection, it should be noted that in the judgment of 19 February 2002, Besix, the Court excluded the application of Article 5(1) of the Brussels Convention (now Article 7(1) of Regulation No 1215/2012) in relation to an obligation which ‘is not capable of being identified with a specific place or linked to a court which would be particularly suited to hear and determine the dispute relating to that obligation’. ( 34 )

50.

Since paragraphs 1 and 2 of Article 7 of Regulation No 1215/2012 pursue the same aims of proximity and foreseeability, the approach applicable to paragraph 1 may also apply to paragraph 2.

51.

Admittedly, the Court has not excluded the jurisdiction of courts for the place where the damage occurred where that damage is only financial. ( 35 ) However, whilst it has not rejected outright the maintenance of that option, it has occasionally come close to that solution. There is not one single line of argument, as can be seen in cases in which the financial loss is the result of infringements of competition law ( 36 ) compared with those in which the loss arose as a result of a failed investment.

52.

Occasionally, the Court associates the damage with an omission or an event caused by the defendant’s actions immediately, and logically, prior to the damage, which are likely to be more (although not completely, as in the case of damage resulting from something which does not happen) perceptible.

53.

The presentation of financial damage by reference to noticeable actions or events helps to establish that damage physically in a territory or, directly, avoids having to do this. I see no reason why that should not become a general approach, ( 40 ) although I think it helpful to draw attention to its risks: linking financial damage to the closest tangible event preceding it may lead to over-elaborate arguments about the categories of ‘initial’ and ‘consequential’ damage. ( 41 )

54.

The financial loss itself took centre stage in other judgments, in which the Court accepted that the damage occurred in the account in which the financial loss was expressed in accounting terms. Typically, that occurs in relation to investments. ( 42 )

55.

In those cases, reasons of proximity between the dispute and the court, or of foreseeability for the parties, require that factual elements other than the place where the damage occurred must, taken together, confirm the suitability of that place when it comes to attributing jurisdiction. Identification of the place where those elements occurred or exist enables confirmation (or, on the other hand, necessitates rejection) of the view regarding the place taken to be that where the financial damage occurred.

56.

In that (recent) case-law of the Court which, thus far, is restricted to three judgments, ( 43 ) the line of reasoning concerning Article 7(2) of Regulation No 1215/2012 is divided into two parts; the determination of the place where the damage arose is only one of these. That place, once identified, does not automatically present the required proximity and foreseeability but is instead a starting point which must be confirmed by the other specific circumstances of the dispute, taken as a whole. ( 44 )

57.

Although that line of argument is complex and diverges from that applied to other types of damage, I do not believe that the Court’s reasoning has changed substantially. The analysis does not afford primary importance to proximity or foreseeability or authorise the person conducting the interpretation to weigh up all the circumstances of the case in order to identify the most suitable forum in the light of those criteria. That point has created uncertainties on the part of the referring court, ( 45 ) and I shall therefore deal with it in more detail below.

58.

In its case-law thus far, the Court has relied on the ‘specific circumstances’ of the case in order to define the jurisdiction criterion relating to the ‘place of the damage’.

59.

As I have explained, that task involves verifying the existence of factors which ensure that the place identified as being that where ‘the damage occurred’ is close and foreseeable, in accordance with the standards laid down in Regulation No 1215/2012. That satisfies the requirements relating to the legal protection of both parties and to the conduct of the proceedings. There is no general requirement to conduct that examination; in other words, it is not necessary for every type of damage: it is required, or may be required, for purely financial damage.

60.

Furthermore, the criterion is not used so that the court seised of the dispute can compare the ‘place of the event giving rise to the damage’ with the ‘place where the damage occurred’ and choose the most suitable of the two.

61.

I do not dispute that the equivalence, in terms of proximity and foreseeability, between the place of the event giving rise to the damage and the place where the damage occurred, first laid down in the judgment in Bier, is theoretical or ideal. That judgment also states that it is not appropriate to opt for one of those places to the exclusion of the other because each one can, ‘depending on the circumstances’, ( 46 ) be helpful from the point of view of the evidence and of the conduct of the proceedings.

62.

The particular nature of the circumstances of the case is not a valid criterion (nor has the Court adopted it) for deciding between the jurisdiction of the courts for the place of the event giving rise to the damage and the courts for place where the damage occurred. That choice has consciously been left to the applicant, which entails acceptance that it will be made, above all, to suit the applicant’s own interests.

63.

The relative nature of the objectives of proximity and legal certainty is, moreover, a structural feature of the system of allocating jurisdiction under Regulation No 1215/2012. Each of the jurisdictions provided for in Article 7 reflects an ex ante balancing exercise, carried out, in the abstract, by the legislature, between the requirements of foreseeability and of proximity.

64.

The result of that balancing exercise strikes a reasonable balance between the two principles, which must be maintained when the rule is implemented. In that connection, the Court previously stated that it is not possible to dismiss the result of applying the criterion formally laid down by Article 7 of Regulation No 1215/2012, even if, in the particular case, it leads to a court which has no connection with the dispute. A defendant may be sued in the court for the place which the provision designates, even where the court thus established is not the court most closely connected with the dispute. ( 47 )

65.

The reference to ‘the court objectively best placed to determine whether the elements establishing the liability of the person sued are present’ ( 48 ) does not require, from the point of view of the method or the result, a comparison between different courts which may have jurisdiction on the basis of the place of the event giving rise to the damage and the place where the damage occurred in order to determine the best-placed court in each case.

66.

That expression is a reflection of the balancing exercise between legal certainty and proximity to the dispute which is crystallised in the jurisdiction criterion enshrined in the legal provision. In other judgments, the Court uses different expressions, such as ‘a particularly close linking factor’, ( 49 ) which do not encompass the notion of a comparison. In so far as they are not misleading in relation to the task of the authority which applies the provision, those other expressions are, in my view, more appropriate.

67.

The question of which ‘other specific circumstances’ must be present as the basis for the jurisdiction of the courts for the place where the damage arose, if that damage is merely financial, clearly depends on each dispute: that expression encompasses the notion of contingency and refers to the particular case concerned. However, I believe that, generally speaking, the following can be classified as ‘other specific circumstances’:

68.

That better explains the factors listed by the Court in the judgment in Löber, ( 51 ) the benchmark for this fresh approach. Those factors include the origin of the payments (identification of the place where the personal and clearing accounts were located); the market on which the prospectus was notified and the certificates were traded and acquired; and the location of the persons with whom the investor had direct dealings and also their domicile.

69.

Those factors may be presumed to contribute to the evidence of the unlawful conduct, the damage and the causal link between the two. They are, furthermore, factors which take account of the parties’ positions in the dispute: as regards Ms Löber — the applicant — those factors indicated that hers was not a cross-border investment; ( 52 ) as regards Barclays Bank — the defendant — those factors should have alerted it to the possibility that individuals in certain Member States who were inadequately informed would make investments which would result in damage.

70.

In the light of the foregoing considerations, it is necessary to be cautious when seeking to apply to any action concerning purely financial damage a modus operandi which, for the purposes of applying Article 7(2) of Regulation No 1215/2012, requires, first, identification of the place where the damage arose and, second, confirmation (or not) of its suitability as a jurisdiction criterion as part of an overall assessment of the specific circumstances of the case.

71.

As regards this dispute, I believe that there are parallels with the cases that led to the judgments in Kolassa, Universal and Löber. I also believe that the factor which may justify the application of the same method is not the vehicle.

72.

Where the financial loss is symbolised by a specific physical object, it may suggest that this object and its location serve as the starting point for establishing jurisdiction in the context of Article 7(2) of Regulation No 1215/2012. ( 53 ) The physical location of the object at the time when the loss occurs ( 54 ) is, as in the case of a bank account, insufficient: all the more so, when the object is something moveable.

73.

From the defendant’s point of view, the location of the vehicles is unforeseeable. In terms of proximity between the court and the dispute, a car itself counts for less than the proof of who owns it and of when it was purchased, particularly where, as the order for reference indicates, an examination of each specific car is not necessary for the purpose of assessing the damage (because it has been estimated as the same percentage of the price for all those affected). ( 55 )

74.

The correct starting point is, rather, the act pursuant to which the product became part of the person concerned’s assets and caused the damage. The place where the damage occurred is the place where that transaction was concluded; the courts for that place will have (international and territorial) jurisdiction if the other specific circumstances of the case also support the allocation of jurisdiction to those courts.

75.

Those circumstances, which it is for the referring court to identify and assess, must include not only circumstances relating to the victim, ( 56 ) but also any factors indicating the defendant’s intention to sell its vehicles in the Member State whose jurisdiction is in issue ( 57 ) (and, as far as possible, in certain districts within that State). ( 58 )

76.

As I have pointed out, it is not straightforward to state in the abstract which circumstances should be present as the basis for jurisdiction to lie with the courts for the place where the ‘damage occurred’, or the guidelines for conducting the overall analysis. However, the lack of certainty about both these matters creates the risk of non-uniform application of Article 7(2) of Regulation No 1215/2012 and also leads to confusion about the method. This is made clear in the final remarks in the order for reference.

77.

The national court is uncertain whether the fact that the vehicles were purchased and transferred in Austria is sufficient to support the jurisdiction of the Austrian courts. In the national court’s view, other aspects, coming within the category of facts, militate in favour of the courts for the place where the event giving rise to the damage occurred (the German courts). The latter would, ‘from the standpoint of efficacious conduct of the proceedings, in particular of the proximity to the subject matter of the dispute and the ease of taking evidence, … be objectively better placed … to clarify where the responsibility for the alleged damage lies’. ( 59 )

78.

The referring court takes the view that, pursuant to the judgments of the Court on purely financial damage, which lay down the obligation to take into account, for the purposes of Article 7(2) of Regulation No 1215/2012, the context and the specific circumstances of the case, it is entitled to tip the balance in favour of the jurisdiction of the courts of another State (Germany). It adds that reference to the place of purchase and transfer of the vehicles jeopardises the ability of the defendant to foresee which court will have jurisdiction, particularly because, in this case, some vehicles were bought second-hand.

79.

I share the view of the Landesgericht Klagenfurt (Regional Court, Klagenfurt) that, in the context of Article 7(2) of Regulation No 1215/2012, it is not enough that Austria was the territory on which the cars were purchased and transferred if Volkswagen could not reasonably have suspected that that purchase might take place in that Member State.

80.

However, I disagree with its approach to the appraisal of the ‘specific circumstances’ of this case:

81.

In the light of the foregoing considerations, I propose that the following reply be given to the Landesgericht Klagenfurt (Regional Court, Klagenfurt, Austria):