Court of Justice of the European Communities (including Court of First Instance Decisions)

ORDER OF THE COURT (Sixth Chamber)

3 September 2020 (*)

(Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court of Justice - Jurisdiction in civil matters - Regulation (EU) No 1215/2012 - Jurisdiction of the courts of the Member State in which the consumer is domiciled - Article 18(2) - Proceedings brought against the consumer by the seller or supplier - Concept of ‘consumer’s domicile’ - Relevant time for determining the consumer’s domicile - Transfer of the consumer’s domicile after the conclusion of the contract and before the action is brought)

In Case C-98/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the Obvodní soud pro Prahu 8 (District Court, Prague 8, Czech Republic), made by decision of 27 January 2020, received at the Court on 26 February 2020, in the proceedings

mBank S.A.

v

PA,

THE COURT (Sixth Chamber),

composed of M. Safjan, President of the Chamber, C. Toader (Rapporteur) and N. Jääskinen, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

makes the following

Order

1 This request for a preliminary ruling concerns the interpretation 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 has been made in proceedings between mBank S.A., a bank established in Poland that carries out online activities in the Czech Republic through a branch, and PA concerning a claim arising from unpaid instalments of a consumer credit agreement.

Legal context

EU law

3 Recitals 15 and 34 of Regulation No 1215/2012 state:

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

…

(34) Continuity between the 1968 Brussels Convention [of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1972 L 299, p. 32)], [Council] Regulation (EC) No 44/2001 [of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1)] and this Regulation should be ensured, and transitional provisions should be laid down to that end. The same need for continuity applies as regards the interpretation by the Court of Justice of the European Union of [that] Convention and of the Regulations replacing it.’

4 Chapter II of Regulation No 1215/2012, entitled ‘Jurisdiction’, contains 10 sections. Section 1, entitled ‘General provisions’, includes Article 4 of that regulation, which provides in paragraph 1 that:

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

5 Section 2 of Chapter II, entitled ‘Special jurisdiction’, contains Article 7 of that regulation, which provides that:

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

(1) (a) in matters relating to a contract, in the courts for the place of performance of the obligation in question;

(b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:

- in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered,

- in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided;

(c) if point (b) does not apply then point (a) applies;

…’

6 Section 4 of Chapter II of Regulation No 1215/2012, entitled ‘Jurisdiction over consumer contracts’, comprises Articles 17 to 19 of that regulation.

7 Under Article 17(1) and (2) of that regulation:

‘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 … 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.

2. Where a consumer enters into a contract with a party who is not domiciled in a Member State but has a branch, agency or other establishment in one of the Member States, that party shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that Member State.’

8 Article 18(2) of the regulation provides:

‘Proceedings may be brought against a consumer by the other party to the contract only in the courts of the Member State in which the consumer is domiciled.’

9 Article 26, which is in Section 7 of Chapter II, entitled ‘Prorogation of Jurisdiction’, states that:

‘1. Apart from jurisdiction derived from other provisions of this Regulation, a court of a Member State before which a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction, or where another court has exclusive jurisdiction by virtue of Article 24.

2. In matters referred to in Sections 3, 4 or 5 where the policyholder, the insured, a beneficiary of the insurance contract, the injured party, the consumer or the employee is the defendant, the court shall, before assuming jurisdiction under paragraph 1, ensure that the defendant is informed of his right to contest the jurisdiction of the court and of the consequences of entering or not entering an appearance.’

10 Chapter V of the regulation, entitled ‘General provisions’, contains, inter alia, Article 62 of that regulation, which provides, in paragraph 1 thereof, that:

‘In order to determine whether a party is domiciled in the Member State whose courts are seised of a matter, the court shall apply its internal law.’

Czech law

11 It is clear from Article 11(1) of Zákon č. 99/1963 Sb., Občanský soudní řád (Law No 99/1963 establishing the Civil Procedure Code) that the circumstances existing at the time proceedings are brought before a court remain relevant for determining the substantive and territorial jurisdiction of that court until the conclusion of the proceedings. With regard to territorial jurisdiction, it is apparent from Article 85 of that code that, unless otherwise provided by law, the court that will ordinarily have jurisdiction in respect of a natural person is the court for the district of that person’s place of residence.

The dispute in the main proceedings and the questions referred for a preliminary ruling

12 On 21 July 2014, a consumer credit agreement was concluded electronically between the parties to the main proceedings under which a credit of 50 000 Czech koruny (CZK) (approximately EUR 1 820) was granted to PA, a natural person who was a consumer.

13 According to the national court, PA was, on several occasions, in arrears with payment and did not pay the monthly instalments relating to that contract, despite several reminders to that effect and a pre-litigation attempt at amicable settlement initiated by the bank.

14 On 7 March 2018, mBank brought proceedings before the national court seeking an order that PA pay the principal, the interest on the principal and the capitalisation of the interest.

15 As the legal basis for the jurisdiction of the Obvodní soud pro Prahu 8 (District Court, Prague 8, Czech Republic), mBank relied on the fact that PA had to be regarded as having her domicile in Prague (Czech Republic), as was apparent from the address given by her in the credit application and in the contract itself.

16 The national court observes, however, that, at the date on which the action was brought, PA’s domicile was in the Slovak Republic and not the Czech Republic. Apart from the fact that all attempts to serve judicial documents on her in the latter Member State failed, PA, who was informed in accordance with Article 26(2) of Regulation No 1215/2012, submitted, with supporting evidence, that at the date the action was brought her permanent residence was in Slovakia and, therefore, disputed the jurisdiction of the Czech court before which proceedings were brought.

17 Although the national court states that, in its view, the concept of ‘consumer’s domicile’, within the meaning of Regulation No 1215/2012, must be understood as referring to the consumer’s domicile on the date on which the action is brought, it nevertheless asks the Court whether that is in fact the case or whether that concept refers to the consumer’s domicile on the date on which the contractual relationship came into being, that is to say, in a case such as that in the main proceedings, the date on which the credit agreement concerned was concluded.

18 That court adds that the contract at issue in the main proceedings does not relate either to a contract for the sale of goods on instalment credit terms or to a loan made to finance the sale of goods, within the meaning of Article 17(1)(a) and (b) of Regulation No 1215/2012 and that, in its view, under Article 17(1)(c), the contract in question could be a consumer contract only if the contract was concluded with a person who pursues commercial or professional activities in the Member State of the consumer’s domicile.

19 In those circumstances, the Obvodní soud pro Prahu 8 (District Court, Prague 8) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does the term “consumer’s domicile” within the meaning of Article 17(1)(c) of Regulation [No 1215/2012], mean the consumer’s domicile as at the date on which the application was lodged or as at the date on which the relationship of obligation arose between the consumer and his or her contractual partner (that is to say, for example, as at the date of the conclusion of a contract), that is, will an agreement be a consumer contract as provided for in Article 17(1)(c) of the regulation cited even in the event that the consumer has, as at the date on which the application was lodged, his or her domicile in a Member State other than that in which the consumer’s contractual partner pursues commercial or professional activities?

(2) Can a consumer domiciled in another Member State within the meaning of Article 7 of Regulation [No 1215/2012] be sued in a court of the place where the obligation concerned was or should have been fulfilled (regardless of Article 18(2) and Article 26(2) of that regulation) due to the fact that the consumer’s contractual partner does not pursue commercial or professional activities in the State in which the consumer’s domicile is located at the time the action is brought?’

Consideration of the questions referred

20 Pursuant to Article 99 of the Rules of Procedure of the Court, where the answer to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law or admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, give its decision by reasoned order.

21 It is appropriate to apply that provision in the context of the present reference for a preliminary ruling.

22 It should be observed as a preliminary point that, according to settled case-law, in the procedure laid down by Article 267 TFEU, providing for cooperation between national courts and the Court, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to determine the case before it. With this in mind, the Court may, where necessary, have to reformulate the questions referred to it (see, inter alia, judgment of 28 May 2020, World Comm Trading Gfz, C-684/18, EU:C:2020:403, paragraph 26 and the case-law cited).

23 Thus, by its questions, which must be considered together, the national court is asking, in essence, whether Article 18(2) of Regulation No 1215/2012 must be interpreted as meaning that the concept of ‘consumer’s domicile’ referred to in that provision means the consumer’s domicile on the date of conclusion of the contract at issue or the consumer’s domicile on the date on which the action was brought.

24 It is apparent from the decision to refer that the contract at issue in the main proceedings was concluded by a natural person who is a consumer and there is nothing in the file available to the Court to suggest that PA concluded that contract for a purpose connected with a trade or profession, within the meaning of Article 17(1) of Regulation No 1215/2012.

25 It follows that, in accordance with Article 17(1), the contract at issue in the main proceedings may fall within the category of ‘consumer contracts’, within the meaning of that provision.

26 As regards the special rules of jurisdiction concerning consumer contracts, where, as in the present case, the action is brought against the consumer by the seller or supplier, Article 18(2) of Regulation No 1215/2012 lays down a rule of exclusive jurisdiction under which the action may be brought only in the courts of the Member State in which the consumer is domiciled.

27 In the present case, it is apparent from the order for reference that PA, who was domiciled in the Czech Republic at the time of the conclusion of the credit agreement at issue in the main proceedings, has since changed domicile, without notifying that change either to her contracting partner or to the Czech authorities.

28 Nevertheless, as set out in paragraph 16 of this order, the national court reached the conclusion, applying the law of the forum in accordance with in Article 62(1) of Regulation No 1215/2012, that PA’s last known domicile was in Slovakia.

29 In that regard, it must be noted, first, that the wording of Article 18(2) of Regulation No 1215/2012, in particular in the Czech, German, English, Polish, Romanian and Finnish language versions, is clear in that it refers to ‘the Member State in which the consumer is domiciled’. Therefore, a literal interpretation of that provision leads to the conclusion that an action brought by a seller or supplier against a consumer may be brought only before the courts of the Member State in which the consumer was domiciled at the time when the action was brought.

30 Secondly, as the Report by Mr P. Jenard on the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1979 C 59, p. 1) states, giving preference to the actual address at the date of bringing the action over the address stated in the contract was already the solution envisaged at the time when that convention was concluded. On page 33 of that report, Mr P. Jenard stated that ‘in actions brought by a seller or a lender, it is rather difficult to determine jurisdiction where the buyer or borrower establishes himself abroad after the contract has been concluded’ and specified that ‘to protect these persons, they should ideally be sued only in the courts of the State where they have established their new domicile’.

31 Thirdly, a different interpretation is liable to create legal uncertainty as to the court with jurisdiction in situations where the consumer has changed domicile on one or more occasions during the course of the legal relationship concerned. Such a multiplication of the courts before which proceedings may be brought would run counter to the objective of Regulation No 1215/2012, set out in recital 15 thereof, in accordance with which the rules of jurisdiction should be highly predictable.

32 In this spirit, it should be noted that in paragraph 47 of its judgment of 17 November 2011, Hypoteční banka (C-327/10, EU:C:2011:745), which concerned Regulation No 44/2001 but which can also be applied to Regulation No 1215/2012, the Court ruled that ‘in a situation … in which a consumer who is a party to a … loan contract … renounces his domicile before the proceedings against him for breach of his contractual obligations are brought, the courts of the Member State in which the consumer has his last known domicile have jurisdiction’. Thus, in a situation where there is a series of domiciles, only the consumer’s last known domicile, at the date on which the action concerned was brought, is decisive for the purposes of determining the international jurisdiction of a Member State’s court.

33 It follows that a Member State’s courts have no jurisdiction to hear and determine a dispute concerning a consumer contract in accordance with the conditions laid down in Article 17(1) of Regulation No 1215/2012 where, as in the present case, the consumer’s last known domicile is not situated in that Member State.

34 It should also be noted that that approach is supported, first, by the broad logic of the rules contained in Section 4 of Chapter II of Regulation No 1215/2012 on jurisdiction over ‘consumer contracts’, which must be interpreted strictly, since they constitute a derogation both from the general rule of jurisdiction laid down in Article 4(1) of that regulation, which confers jurisdiction on the courts of the Member State in which the defendant is domiciled, and from the rule of special jurisdiction for contracts, set out in Article 7(1) of that regulation, which confers jurisdiction on the courts of the place of performance of the obligation on which the claim is based (see, by analogy, concerning Regulation No 44/2001, judgment of 6 September 2012, Mühlleitner, C-190/11, EU:C:2012:542, paragraphs 26 and 27 and the case-law cited).

35 Secondly, as stated in the report by Mr P. Jenard, referred to in paragraph 30 above, such a solution is consistent with the specific purpose of Section 4 of Chapter II of Regulation No 1215/2012 on ‘jurisdiction over consumer contracts’, which lays down special rules of jurisdiction in favour of the consumer as the party deemed to be economically weaker and less experienced in legal matters than the other professional party to the contract (see, by analogy, judgment of 23 December 2015, Hobohm, C-297/14, EU:C:2015:844, paragraph 31 and the case-law cited).

36 Therefore, the answer to the questions referred for a preliminary ruling is that the concept of ‘consumer’s domicile’ referred to in Article 18(2) of Regulation No 1215/2012 must be interpreted as designating the consumer’s domicile at the date on which the court action is brought.

Costs

37 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, the Court (Sixth Chamber) hereby rules:

The concept of ‘consumer’s domicile’ referred to in Article 18(2) 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 must be interpreted as designating the consumer’s domicile at the date on which the court action is brought.

[Signatures]

* Language of the case: Czech.