OPINION OF ADVOCATE GENERAL
BOT
delivered on 4 July 2018 (1)
Case C‑308/17
Hellenische Republik
v
Leo Kuhn
(Request for a preliminary ruling from the Oberster Gerichtshof (Supreme Court, Austria))
(Reference for a preliminary ruling — Regulation (EU) No 1215/2012 — Jurisdiction in civil and commercial matters — Scope — Article 1(1) — ‘Civil and commercial matters’ — Bonds issued by a Member State — Involvement in the restructuring of public debt — Unilateral and retroactive adjustment of the borrowing terms — Collective action clauses — Action brought against the State by private creditors who hold those bonds as natural persons — Liability of the State for acta iure imperii — Special jurisdiction — Article 7(1)(a) — Jurisdiction in matters relating to a contract — ‘Matters relating to a contract’ — ‘Obligation freely assumed by one party towards another’ — ‘Place of performance of the obligation in question’ — Terms of the subscription to the State bond — Successive transfers of the claim — Actual place of performance of the ‘principal obligation’ — Payment of interest)
I. Introduction
1. The request for a preliminary ruling concerns the interpretation of Article 7(1)(a) 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. (2)
2. This request was made in the course of proceedings between the Hellenische Republik (the Hellenic Republic) and Leo Kuhn concerning an application seeking to enforce the borrowing terms relating to bonds issued by that Member State which Mr Kuhn had held or damages for the non-fulfilment of those terms.
3. In order to fully assess the meaning and the scope of this request, it must be viewed in a wider context.
4. First, these proceedings, which concern the restructuring of Greek public debt, carried out in March 2012 with private sector involvement, (3) are not isolated.
5. Secondly, the importance of the questions referred by the Oberster Gerichtshof (Supreme Court, Austria) with regard to jurisdiction reaches far beyond the technical aspects of those questions, which are traditionally renowned for being difficult in terms of the provision to be interpreted. Fundamentally, these proceedings concern the developments in the lending techniques of States and the political and economic challenges which result in the treatment of sovereign debt in dispute being regarded as a highly sensitive subject.
6. The choice of market financing by issuing bonds (4) has had the effect of making the management of sovereign debt more complex because the contractual mechanisms are not suited to the variety of creditors, who may be public, private, institutions, or natural persons and, in particular, there is no coordination between them.
7. In addition, when a sovereign debt crisis occurs, the lack of a general and organised procedure for the treatment of State insolvency results in the outcome of the restructuring procedure being placed in the hands of the court. (5)
8. Therefore, the complex legal issues raised by the increasing number and international nature of procedures cannot be separated from the economic context in which they must be resolved. (6)
9. In the case of the restructuring of Greek debt in 2012, which was of an unprecedented amount, (7) the difficulties which had traditionally been identified were presented in a new light on account of the bonds being issued in euros and the associated risk of a systemic crisis. (8) Those difficulties warranted the use of financial and legal solutions the exceptional nature of which explains the acuteness of the issues to be resolved.
10. The Court of Justice of the European Union has already had occasion to address the delicate issue of the effects of that restructuring on the rights of Greek bondholders from the perspective of the service of judicial documents, thus at an early stage of dispute, before any examination of the substance of the case, in the judgment of 11 June 2015, Fahnenbrock and Others (C‑226/13, C‑245/13 and C‑247/13, ‘the judgment in Fahnenbrock and Others’, EU:C:2015:383).
11. Since that date, further decisions have been given by European courts before which a large number of other Greek bondholders have brought proceedings pursuing the same objective: to ensure that their contractual rights are respected or to seek compensation for the damage allegedly caused.
12. Thus, by the judgment of 7 October 2015, Accorinti and Others v ECB, (9) the General Court of the European Union dismissed the action brought on 11 February 2013 by over 200 holders of Greek private sector bonds, the majority of whom were Italian, for compensation for the damage sustained following, in particular, the adoption by the European Central Bank (ECB) of the decision of 5 March 2012 on the eligibility of marketable debt instruments issued or fully guaranteed by the Hellenic Republic in the context of the Hellenic Republic’s debt exchange offer, (10) and also of other ECB measures linked with the restructuring of the Greek public debt. Then, by the judgment of 24 January 2017, Nausicaa Anadyomène and Banque d’escompte v ECB, (11) the General Court dismissed the claim for compensation brought on 21 December 2015 by commercial banks, excluding all liability of the ECB, confirming its findings in respect of natural persons who held Greek State bonds.
13. Moreover, the European Court of Human Rights has examined the applications, lodged during September and October 2014 by 6 320 Greek nationals, who, as natural persons, held Greek State bonds of amounts ranging from EUR 10 000 to EUR 1 510 000, concerning their forced participation in the reduction of Greek public debt by exchanging their bonds for others of lesser value. By the judgment of 21 July 2016, (12) that Court held unanimously that there had been no violation of Article 1 of Protocol No 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, (13) or of Article 14 of the ECHR, in conjunction with Article 1 of that protocol. (14)
14. Now, the Court is asked to supplement its analysis by taking a view on the rules to be applied to determine the jurisdiction of the court seised, building on the judgment in Fahnenbrock and Others and the judgment of 28 January 2015, Kolassa (C‑375/13, ‘the judgment in Kolassa’, EU:C:2015:37), with regard to the nature of the legal relationships between the issuer of a sovereign bond and the purchaser of that bond.
15. The questions raised by the referring court, and the observations of the parties, must lead the Court to determine, first, whether the dispute in the main proceedings falls within the scope of Regulation No 1215/2012, which applies, in accordance with Article 1(1) thereof, ‘in civil … matters’, with the exception of, in particular, the liability of the State for acts in the exercise of State authority (acta iure imperii). If the dispute falls within the scope of that regulation, it is then necessary to ensure that it can be classified as a dispute in ‘matters relating to a contract’ within the meaning of Article 7(1)(a) of the regulation, as interpreted by the Court, which lays down a rule of special jurisdiction derogating from the general rule that jurisdiction lies with the courts of the Member State in which the defendant is domiciled. Finally, if that is the case, the ‘place of performance of the obligation in question’, within the meaning of Article 7 of that regulation, must be determined.
16. At the end of my analysis, I shall propose, only in the alternative, the answers to be given to the latter two questions concerning the conditions for applying the rule of special jurisdiction provided for in Article 7(1)(a) of Regulation No 1215/2012.
17. I shall submit, principally, that the dispute does not fall within the scope of that regulation.
II. Legal framework
A. EU law
18. Recitals 4, 15 and 16 of Regulation No 1215/2012 (15) state:
‘(4) Certain differences between national rules governing jurisdiction and recognition of judgments hamper the sound operation of the internal market. Provisions to unify the rules of conflict of jurisdiction in civil and commercial matters, and to ensure rapid and simple recognition and enforcement of judgments given in a Member State, are essential.
…
(15) The rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile. Jurisdiction should always be available on this ground save in a few well-defined situations in which the subject matter of the dispute or the autonomy of the parties warrants a different connecting factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction.
(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. 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.’
19. Article 1(1) of that regulation provides:
‘This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii).’
20. Under Article 4(1) of that regulation, which falls under Chapter II, entitled ‘Jurisdiction’, Section 1, which brings together the ‘General provisions’:
‘Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.’
21. In Section 2 of Chapter II, entitled ‘Special jurisdiction’, Article 7(1)(a) of Regulation No 1215/2012 provides:
‘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’. (16)
B. Greek law
22. According to the order for reference, (17) the Hellenic Republic issued sovereign bonds in Greece as uncertificated (book-entry) securities, which were subject to Greek law and traded on the Athens stock exchange. Those uncertificated securities were registered (18) in the Greek Central Bank’s securities settlement system, which includes the accounts opened in the name of each of the participants authorised by the Governor of the Central Bank to participate in that system. (19)
23. Under Article 6(2) of that law, participants in the Greek Central Bank’s securities settlement system may grant to third party investors rights relating to a bond, (20) however, a legal act of that kind has effect only with respect to the parties concerned and expressly excludes any effect to the benefit or detriment of the Hellenic Republic.
24. Article 6(4) of Law No 2198/1994 provides that a bond is transferred on being credited to the participant’s account.
25. Article 6(5) to (7) of that law makes it easier to understand the ‘system’ described by the referring court. It provides:
‘5. Participants’ accounts are held in the system. Investors’ accounts are held with participants.
6. Both in the system and with participants, the accounts are held separately in classes of securities which have common characteristics.
7. In the system, separate accounts are held for each participant, on the one hand, for the securities in its own portfolio and, on the other, for the securities in its investment clients’ portfolio. The investors’ portfolio account held with each participant combines all of the participant’s investors.’
26. Article 8 of that law, entitled ‘Investors’ claims’, provides:
…
‘2. The investor’s claim based on its security shall be solely against the participant that holds its account. If the State has not fulfilled its obligations set out in paragraph 6 of this article, the investor’s claim based on its security shall be solely against the State.
…
6. The payment of accrued principal and interest by the State to the Greek Central Bank shall entail the end of the State’s obligations. The Greek Central Bank shall allocate to each participant the principal and interest for securities payable when the loan reaches maturity. The abovementioned payment shall entail the end of the Greek Central Bank’s obligations.
…’
27. Moreover, the Nómos 4050/2012 — Kanónes tropopoiíseos títlon ekdóseos í engyíseos tou Ellinikoú Dimosíou me symfonía ton Omologioúchon (Law No 4050/2012, entitled ‘Rules relating to the adjustment of securities issued or guaranteed by the Greek State with the consent of the bondholders’, (21) of 23 February 2012, provides that the holders of certain Greek Government bonds are to receive a ‘restructuring’ offer.
28. This term, used by the referring court, is also contained in the judgment in Fahnenbrock and Others (paragraph 8). In my view, a distinction should be made between the ‘restructuring of the public debt’ and the offer to participate in that restructuring, consisting in the ‘adjustment of eligible securities’ within the meaning of Article 1(2) of Law No 4050/2012, which provides:
‘The Council of Ministers, on a proposal from the Ypourgoú Oikonomikón (Ministry of Finance, Greece), shall decide to initiate the procedure for the adjustment of eligible securities by bondholders, stipulate the eligible securities and, where they are replaced, stipulate the capital or the nominal amount, the interest rate or return, the maturity, the law (United Kingdom or other) to which the new securities issued by the Greek State are to be subject and shall authorise the Organismós Diacheírisis Dimósiou Chréous (Public Debt Management Agency, Greece) to issue one or more invitations on behalf of the Greek State.
By that invitation, the holders of the eligible securities referred to therein are called upon to decide, within a prescribed period, whether they accept the adjustment of eligible securities, as proposed by the Greek State, in accordance with the procedure provided for in this article’.
29. That Law No 4050/2012 provides for the introduction of a ‘restructuring’ (22) clause or ‘collective action clause’ (‘CAC’) which enables the initial borrowing terms to be adjusted by means of decisions adopted by the qualified majority of those holding the outstanding capital and applies equally to the minority.
30. In accordance with paragraph 9 of the judgment in Fahnenbrock and Others, ‘[u]nder Article 1(4) of that law, the adjustment of the securities referred to requires the constitution of a quorum representing 50% of the total of the outstanding bonds concerned, and a qualified majority corresponding to two thirds of the participating capital’.
31. To supplement the summary contained in paragraph 10 of that judgment, the Greek Government’s citation of Article 1(9) of Law No 4050/2012 should be reiterated. In accordance with that provision:
‘With effect from the publication in the Official Journal of the Hellenic Republic of the approval decree by the Council of Ministers, the bondholders’ decision, as certified by the administrator of the procedure, shall have effect erga omnes, it shall be binding on all bondholders and investors in eligible securities and it shall prevail over any general or specific provisions of any law, regulatory act or agreement which provide otherwise. Where eligible securities are replaced, by registering new securities in the system, the eligible securities replaced by new securities shall be cancelled automatically, ending entitlement to any right or obligation stemming from them, including all of the rights and obligations which form part of them at any given moment.’
32. Article 1(11) of Law No 4050/2012, which is also cited in the judgment in Mamatas (§ 48), provides:
‘The aim of the provisions of this article is to protect an overriding public interest. They are mandatory provisions which are directly applicable and shall prevail over any general or specific provisions of any law, regulatory act or agreement …, and their application shall not create or activate any contractual or legal right to the benefit of the bondholder or the investor, or any contractual or legal obligation to the detriment of the issuer or the guarantor of securities …, unless expressly provided for in this article.’
III. Facts and the questions referred for a preliminary ruling
33. Mr Kuhn, domiciled in Vienna (Austria), purchased, through a custodian bank established in Austria, acting as a commission agent, (23) bonds with a nominal value of EUR 35 000, (24) issued by the Hellenic Republic and subject to Greek law. Those government bonds were credited to a securities account, managed by the custodian bank, of which Mr Kuhn is the holder. (25) They are bearer securities which, in accordance with the borrowing terms, confer entitlement to repayment of the capital on maturity and to ‘punctual payment’. (26)
34. The referring court states that the Greek State issued those bonds in Greece and that they were subject to Greek law and traded on the Athens stock exchange as ‘uncertificated securities’, that is to say book entry securities. Those securities were registered in the Greek Central Bank’s securities settlement system, in which participants in that system, who have been authorised by the Governor of that Central Bank, have an account in their name.
35. According to that court, it follows from the provisions of Law No 2198/1994 and from the borrowing terms relating to the government bonds at issue that the participants in that system were the first to become the holders and creditors of those bonds, which were transferred on being credited to their account, before they granted the rights attaching to those bonds to third party investors, and that a legal act of that kind has effect only with respect to the parties concerned, with the exception of the Hellenic Republic.
36. Following the adoption of Law No 4050/2012, the Hellenic Republic converted the bonds that had been purchased by Mr Kuhn, replacing them with new government bonds with a lower nominal value.
37. The referring court states that, according to Mr Kuhn’s assertions, up until the date of that conversion, the Hellenic Republic had paid interest to an account opened in Mr Kuhn’s name with a bank established in Austria. It states that Mr Kuhn sold (27) the converted bonds for EUR 7 831.58, as a result of which he sustained a loss of EUR 28 673.42, which is the amount corresponding to the nominal value of the bonds on the maturity date of 20 February 2012, (28) plus interest and charges.
38. In those circumstances, Mr Kuhn brought an action before the Landesgericht für Zivilrechtssachen Wien (Regional Civil Court, Vienna, Austria) (29) seeking to enforce the borrowing terms relating to the bonds at issue or for compensation for non-fulfilment of those terms.
39. By order of 8 January 2016, that court declared that it did not have international jurisdiction to hear and determine that action.
40. An appeal against that order was brought before the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria) which, by order of 25 February 2016, rejected the objection of lack of jurisdiction of the Austrian courts on the grounds that Mr Kuhn’s claim was based not on a Greek legislative act, but on the initial borrowing terms relating to the government bonds at issue and that the court with jurisdiction is designated under Greek law, which is applicable depending on the parties, and in the present case is the court where the creditor is domiciled and the place where the debt should have been discharged.
41. The Hellenic Republic lodged an extraordinary appeal against that order before the referring court.
42. According the referring court, in so far as Mr Kuhn is seeking enforcement of the borrowing terms of the government bonds at issue by the Hellenic Republic, Mr Kuhn rightly refers to the alleged legal relationship between himself as the purchaser of the government bonds, and the Hellenic Republic, as the issuer of those bonds, and therefore there is a ‘(secondary)’ (30) contractual claim under Article 7(1) of Regulation No 1215/2012.
43. The referring court also states, first, that Mr Kuhn is asserting a claim for enforcement of the borrowing terms based on the commitment to pay given by the Hellenic Republic as the obligor and, secondly, that the issue of ‘(bearer)’ (31) bonds cannot be treated the same way as acta iure imperii. It infers from this that the dispute concerns civil and commercial matters.
44. In those circumstances, the Oberster Gerichtshof (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘Must Article 7(1)(a) of Regulation [No 1215/2012] be interpreted as meaning that:
– even in the case — as here — of the repeated contractual transfer of a claim, the place of performance within the meaning of that provision is determined by the first contractual agreement?
– in the case of the assertion of a claim seeking compliance with the terms of a government bond such as that specifically issued by the Hellenic Republic in the present case, or seeking damages for non-fulfilment of that claim, the actual place of performance is established immediately upon the payment of interest from that government bond into an account of a person holding a domestic securities portfolio [ (32)]?
– the fact that a legal place of performance within the meaning of [that provision] was established by the first contractual agreement precludes the assumption that the subsequent actual performance of a contract establishes a — further — place of performance within the meaning of [the same] provision?’
IV. My analysis
45. By its three questions, the referring court asks, in essence, whether, in a situation such as that at issue in the main proceedings, in which a person, through a custodian bank, has purchased bonds issued by a Member State and asserts a claim against that Member State based on the terms of the bond, Article 7(1)(a) of Regulation No 1215/2012 must be interpreted as meaning that the ‘place of performance of the obligation in question’ is determined by the terms of the loan when those bonds are issued, notwithstanding the subsequent transfers of those bonds, or by the place where the terms of the loan, such as the payment of interest, are actually performed.
46. It must be stated that the Hellenic Republic and the Greek and Italian Governments submit that the dispute in the main proceedings does not fall within the scope ratione materiae of Regulation No 1215/2012 since, in essence, it is based on the sovereign right of a Member State to legislate for the purpose of restructuring its public debt, or under ‘matters relating to a contract’ within the meaning of Article 7(1)(a) on the ground that there is no contractual relationship between the Member State and the holder of the government bonds. Consequently, first of all, the Court must determine whether the action may be classified as concerning ‘civil and commercial matters’, within the meaning of Article 1(1) of that regulation. (33) Only if that question is answered in the affirmative must the Court take a view on the second preliminary question set out above.
A. Does the dispute fall within the scope of Regulation No 1215/2012?
47. To support its view that the dispute falls within the scope of civil and commercial matters, the national court has referred to the judgment in Fahnenbrock and Others, after having found that the applicant is requesting that the borrowing terms be enforced or is seeking damages for the non-fulfilment of those terms by the defendant State, which issued the government bonds on the basis of the commitment to pay that was made by that State as the obligor. (34) Although that approximation may appear to be relevant to a certain extent, I take a fundamentally different view on the conclusions that should be drawn from it, on the ground that the analysis of jurisdiction must be established on different bases, which I shall examine.
1. The scope of the judgment in Fahnenbrock and Others
48. As regards the first element in common, it may be observed that the subject matter of the dispute, which arises in quasi-analogous factual circumstances, (35) is similar, since, in one of the cases (Kickler and Others, C‑578/13) on which the Court based its judgment in Fahnenbrock and Others, the holders of Greek bonds requested, in addition to the payment of damages, that the Hellenic Republic perform the contract in respect of the original bonds which had matured. The ground of the claim is, in all cases, infringement of the rights and obligations under the contract. (36)
49. In those circumstances, the second element in common is particularly important since the Court gave a ruling on the interpretation of Article 1(1) of Regulation (EC) No 1393/2007, (37) the wording of which is identical to Article 1 of Regulation No 1215/2012. Their scope is confined to ‘civil and commercial matters’ and, in particular, does not cover the ‘liability of the State for acts and omissions in the exercise of State authority (acta iure imperii)’. (38)
50. In Fahnenbrock and Others, the Court held that ‘Article 1(1) of Regulation [No 1393/2007] must be interpreted as meaning that legal actions for compensation for disturbance of ownership and property rights, contractual performance and damages, such as those at issue in the main proceedings, brought by private persons who are holders of government bonds against the issuing State, fall within the scope of that regulation in so far as it does not appear that they are manifestly outside the concept of civil or commercial matters’. (39)
51. However, the scope of the judgment in Fahnenbrock and Others is not, in my view, the same as that attributed to it by the referring court. Particular attention should be paid to the interpretative limits laid down by the Court.
52. In that regard, it is essential to start by pointing out that the Court took a different approach from the previous solutions which aimed to harmonise the interpretation of same concept, on account of the specific objectives to be attained. (40) Therefore, it follows from the methodological grounds for that decision (41) that the Court clearly favoured the mechanism established by Regulation No 1393/2007 in order to ensure its full effectiveness with the aim of guaranteeing swift access to the trial court and the right to a fair trial. (42)
53. The Court then held that the assessment undertaken by the court at the stage of the request for service was of a specific nature, taking the view that, in the subsequent adversarial proceedings, it is for the court hearing the case to settle the debate on jurisdiction. (43)
54. In that regard, it took the view that the return of the request for service by the receiving agency should have been reserved to disputes which, clearly, fall outside the scope definition of civil and commercial matters. (44)
55. Finally, the Court gave two useful answers for the purposes of a prima facie examination or, in other words, a review that is of an intensity appropriate to the objective of speedy service pursued, in the specific case which is such as to cast doubt a priori on whether the action is of a civil nature since it is directed against a State and concerns the issue of government bonds by that State.
56. First, the Court stated that ‘the issue of bonds does not necessarily presuppose the exercise of powers falling outside the scope of the ordinary legal rules applicable to relationships between individuals’. (45) Secondly, it noted certain elements warranting a detailed examination of the nature of the State’s relationship with the holder. These are the financial conditions of the securities concerned which may have been fixed ‘on the basis of market conditions which govern the exchange and profitability of those financial instruments’ (46) and changes to those financial conditions which ‘were to give effect to a decision of a majority of the bondholders’ on the basis of the exchange clause incorporated into the contract of issue. (47)
57. The Court, which had previously noted the complexity of matters which have a bearing on State immunity, (48) inferred from this that ‘it cannot be concluded that the cases in the main proceedings are manifestly not “civil or commercial matters”, within the meaning of Regulation No 1393/2007; that regulation is therefore applicable to those cases’. (49)
58. Consequently, where it is for the court hearing the case to examine whether it has jurisdiction, as the Court has observed, (50) the analysis of the classification of a dispute must be resumed by focusing the debate on the factors highlighted by the Court in the judgment in Fahnenbrock and Others in order to justify its reservations regarding the manifest nature of the exercise of State authority.
2. The classification of the dispute
59. As a preliminary point, it seems appropriate to me to point out that the interpretative methods in the previous instruments governing jurisdiction, which have been used to date, (51) are intended to apply to Regulation No 1215/2012. (52)
60. Therefore, according to settled case-law, the interpretation of the independent concept of ‘civil and commercial matters’ results in determining the scope of the instruments governing jurisdiction ‘by reason either of the legal relationships between the parties to the action or of the subject matter of the action’. (53) It is therefore necessary to identify the legal relationship between the parties to the dispute, the basis of the action brought and the detailed rules governing the bringing of that action. (54)
61. In the present case, it is necessary to examine whether the substantive basis of the action for compensation brought by an individual against the State issuing the bond is an act in the exercise of public powers or, more specifically, whether the legal relationship between the Greek State and Mr Kuhn under the terms of the bond is characterised by an exercise of public powers on the part of the debtor State, in that it entails the exercise of powers going beyond those existing under the rules applicable to relations between private individuals. (55)
62. In my view, in this case as in the previous cases regarding the restructuring of Greek debt, that exercise is the result of both the nature of and the detailed rules for the changes to the contractual relationship between the Greek State and the holders of securities and the context in which those changes took place.
63. The general terms of the ‘adjustment’ or the ‘conversion’ of securities, which are commonly used, temper substantially the reality of the bond exchange carried out: (56) the original securities were cancelled and replaced by new securities with a lower nominal value, leading to a capital loss of 53.5%, or even more if account is taken of the change to the date on which the earlier securities should have matured, (57) as some of them were due to mature between 2023 and 2042. The annual rates for the payment of coupons were revised. Finally, the securities are no longer subject to Greek law, but to United Kingdom law. (58)
64. As it is substantive in nature, that substitution of securities cannot be treated in the same way as adjustments that are generally regarded as risks inherent in that type of investment, which are fully controlled by the borrower Member State, (59) and which can be expected by a purchaser of bonds who is reasonably circumspect. (60)
65. The detailed rules for that substitution must also be highlighted since they were not provided for in the terms of the bond or in the Greek law governing the bonds when they were issued. The detailed rules were imposed by the Greek legislature as a result of Law No 4050/2012 by introducing CACs retroactively.
66. As a result of those clauses, the agreement concluded between the State and the bondholders, having decided, by qualified majority, to accept the contractual amendments proposed by the Greek State, enabled those amendments to be imposed on the minority of holders, including those who wanted to refuse them.
67. The use of that mechanism cannot bring into doubt that the amendments to the terms of the bonds for the minority of holders were direct and immediate, (61) in particular because the aim of Law No 4050/2012 was specifically to achieve that result in order to prevent Greece from being in default. (62) The European Court of Human Rights has also inferred from the CAC mechanism that ‘the detailed rules on the basis of which the exchange [had] taken place clearly demonstrate that [the applicants] did not participate voluntarily in the haircut process’. (63)
68. To answer the question at issue in this case as to whether Regulation No 1215/2012 applies, it cannot be argued that, as a result of CACs, the consent of holders has been given in a contractual context. (64) This cannot be separated from the circumstances in which the retroactive insertion of those clauses into the borrowing terms was accepted.
69. Whilst Law No 4050/2012 implements the agreement resulting from the negotiations between the Hellenic Republic and private investors (PSI), the involvement of whom has been regarded as ‘[having] a vital role in establishing the sustainability of the … debt [of the Hellenic Republic]’, (65) it has been established that natural persons, who constituted only a minority of the holders of Greek State bonds and who accounted for approximately 1% of Greece’s overall public debt, did not participate in those negotiations with institutional investors, such as, inter alia, banks and credit agencies. (66)
70. Moreover, other aspects of the exceptional context in which Law No 4050/2012 was enacted must also be taken into consideration.
71. First, the compulsory procedure, imposed by that law, is the outcome of the search for ‘an exceptional and unique solution’ (67) to the situation in the Hellenic Republic. It is inextricably linked to the monetary policy of the European Union since its objective was to safeguard the financial structure of a Member State and, more broadly, to safeguard the financial stability of the euro area as a whole. (68)
72. Secondly, the unprecedented reliance (69) on the retroactive inclusion of CACs sought to prevent the risk that the restructuring plan could fail (70) as a result of, inter alia, the absence of CACs (71) when the bonds were issued by the Hellenic Republic on the national market. Since the objective to be attained was to ensure that all individual creditors participated, the Greek authorities took advantage of the fact that over 90% of the bond debt was subject to Greek law in order to adjust that debt by imposing those clauses. (72)
73. Thirdly, the implementation of a procedure of that kind by the State, acting as both contracting party and legislature, is time-bound. (73) First, the new bonds arising from the conversion are subject to United Kingdom law and that law provides for CACs. (74) Secondly, following the decision of the euro-area Finance Ministers in November 2010, which was confirmed in the European Council’s conclusions of 24 and 25 March 2011, (75) to make the use of CACs compulsory, in accordance with Article 12(3) of the Treaty establishing the European stability mechanism (ESM), concluded in Brussels on 2 February 2012, (76) as of 1 January 2013, CACs are to be included in all securities with a duration exceeding one year concerning the public debt of Member States of the euro area. (77) They are now one of the ways to ensure the financial stability of the euro area and therefore play a part in the objective ‘to ensure that solvency crises encountered by the States are managed’ (78) and to reassure investors.
74. All of those considerations highlight the pursuit of an objective in the general interest, which is not limited to the interests of Greece, but concerns the whole of the euro area. To find, in such circumstances, that the dispute is not upheld within the strict scope of matters relating to a contract (79) does not, in my view, appear to facilitate the recourse by the borrower States to the law in order to ‘immunise’ (80) sovereign debt contracts by amending the borrowing terms, in particular retroactively.
75. I infer from this that the substantive origin of the dispute in the main proceedings is an act of public authority by which the conversion of securities and the adjustment of the initial borrowing terms were imposed retroactively, in exceptional circumstances and under exceptional conditions, in order to prevent the Greek State from defaulting and to ensure the stability of the euro area.
76. Consequently, I propose that the Court should answer the questions referred for a preliminary ruling to the effect that an action brought by a natural person who has purchased bonds issued by a Member State, against that Member State, seeking to enforce the initial borrowing terms or seeking damages for the non-fulfilment of those terms, on account of those bonds having been exchanged for bonds of a lesser value, that exchange having been imposed on that natural person by a law, adopted by the national legislature in exceptional circumstances, unilaterally and retrospectively amending the conditions applicable to the bonds by inserting a CAC enabling the majority of the bondholders to impose such an exchange on the minority, does not fall within the scope of ‘civil and commercial matters’ within the meaning of Article 1(1) of Regulation No 1215/2012.
77. If, however, the Court were to take the view that the action at issue simply ‘make[s] relationships governed by private law [between the purchaser of the government bond and the State which has performed an act jure gestionis] subject to review by the courts’, (81) it would then be necessary to determine whether the dispute falls within the scope of ‘matters relating to a contract’, within the meaning of Article 7(1)(a) of that regulation.
B. Does the dispute fall within the scope of ‘matters relating to a contract’, within the meaning of Article 7(1)(a) of Regulation No 1215/2012?
78. After having provided the bases of the reasoning and specified how the judgment in Kolassa cannot serve as a reference, I shall set out my view as to the classification of the dispute in the main proceedings.
1. Reminder of the principles of interpretation
79. As a preliminary point, I shall point out the bases on which every interpretation of ‘matters relating to a contract’ are founded.
80. As with the interpretation of Article 1(1) of Regulation No 1215/2012, (82) reference must be made to the interpretation given by the Court concerning Article 5(1) of Regulation No 44/2001, as this also applies to Article 7(1)(a) of Regulation No 1215/2012 which replaced it. (83)
81. It follows, first, that Article 7 must be interpreted restrictively since it offers the applicant a choice of jurisdiction and, therefore, the option to be an exception to the principle that the courts of the Member State in which the defendant is domiciled should have jurisdiction. Therefore, according to the settled case-law of the Court, special jurisdictional rules cannot give rise to an interpretation going beyond the cases expressly envisaged by the regulation. (84)
82. Secondly, it is important to identify solutions which are consistent with the general objective pursued, set out in recital 16 of Regulation No 1215/2012. This is to facilitate the sound administration of justice where ‘there is a close connecting factor between the dispute and the court called upon to resolve it’. (85) The court of the place where the contractual obligation giving rise to the action is to be performed will normally be the most appropriate for deciding the case, in particular on the grounds of proximity and ease of taking evidence. (86) The assurance that the decision will be implemented quickly may also be taken into consideration. (87)
83. Thirdly, again according to settled case-law regarding the independent concept of ‘matters relating to a contract’ (88) and, therefore, to the exclusion of ‘referring to the national law of one or other of the States concerned’, (89) the application of the rule of special jurisdiction provided for in that regard in Article 7(1)(a) of Regulation No 1215/2012 presupposes the identification of a legal obligation freely consented to by one person towards another and on which the claimant’s action is based, and the fact that no contract was concluded, (90) or that the contract is governed by mandatory provisions, (91) is of little importance.
84. In that regard, the Court has stated that an action to establish liability may fall within the scope of ‘matters relating to a contract’ ‘where the conduct complained of may be considered a breach of contract, which may be established by taking into account the purpose of the contract’ and that ‘[t]hat will a priori be the case where the interpretation of the contract which links the defendant to the applicant is indispensable to establish the lawful or, on the contrary, unlawful nature of the conduct complained of against the former by the latter’. (92) The term ‘matters relating to tort’ is chosen only where the action is not closely related to a contract. (93)
85. In respect of an action such as that at issue in the main proceedings, it would be sufficient, in the Hellenic Republic’s view, to transpose the case-law in Kolassa. I do not share that view for the following reasons.
2. The scope of the judgment in Kolassa
86. In that judgment, which concerns the purchase of securities on the secondary market involving several intermediaries, as in the circumstances of the dispute in the main proceedings, the Court held inter alia that Article 5(1)(a) of Regulation No 44/2001 must be interpreted as meaning that an applicant who has acquired a bearer bond from a third party, without the issuer thereof having freely assumed an obligation towards that applicant, which it is for the referring court to verify, may not invoke jurisdiction under that provision for the purposes of an action brought against the issuer and based on the bond conditions, breach of the information and control obligations and prospectus liability. (94)
87. The Court took the view that it was clear from the summary of the facts set out by the referring court that a legal obligation freely consented to by the bank that issued the bond with respect to the applicant who had acquired a bearer bond from a third party was lacking. (95)
88. I consider that the dispute in the main proceedings is different from the situation which gave rise to that judgment for a number of reasons. First, the bonds on which the investor’s action was based were pre-contractual in nature. He relied on the liability of the issuer of the bonds that he had acquired on the basis of the prospectus and the infringement of other legal information obligations incumbent on the issuer in order to demonstrate that he would not have made an investment of that kind had he been better informed.
89. Secondly, the issue of government bonds, as described by the referring court, which corresponds to the usual form of intermediation in respect of State debts, is subject to conditions which are fundamentally different from the conditions for certificates such as those in which Harald Kolassa invested. The certificates at issue in those proceedings had been issued by a private bank and took the form of bearer bonds, the value of which was to be determined by an index made up of a portfolio managed by a company. (96)
90. Thirdly, the Court held that the applicant was not the bearer of those bonds, (97) after having found that they had been ordered and acquired by the bank with which the applicant was in a direct relationship, from its parent company, as those companies had carried out the order in their name, and that those bonds had been held as covering assets by the intermediary bank in its own name and on behalf of the applicant. (98)
91. That is not the case in the main proceedings. According to the referring court, the applicant is the holder of securities which were purchased in his name by the custodian bank, that bank having acted as a commission agent.
92. Accordingly, the question arises as to the specific classification to be given to those relationships. As regards the choice of the independent concept of ‘matters relating to a contract’, (99) it is for the Court to make a decision in this regard.
3. The specific classification with regard to the issue of government bonds
93. In matters relating to the issue of government bonds, the question of classification is new and complex because it has a dual purpose, namely the specific nature of the government bond and the transfer of rights or the assignment of the claim attached to it.
94. It must also be borne in mind that ‘[t]he rights in respect of securities are now mostly held, transferred or pledged in book entry form in securities accounts’. (100)
95. Although various authors maintain that there is no contractual relationship between the issuer and the investor on the secondary market, others consider that that approach could be tempered. (101) Like the latter group, I consider that, in that regard, although it may be conceded that there is no longer a direct contractual relationship, as the security has not been signed by the issuer and the holder, (102) ‘it cannot be determined as a general rule that the legal relationships between the issuer of a financial security and the investor who acquires those instruments (albeit on the secondary market) are not contractual. That question may be assessed on a case-by-case basis only, according to the exact nature of the financial instruments, the documents governing those instruments and the rights and obligations which derive from them on the part of the issuer and the investor’. (103)
96. I consider that paragraph 41 of the judgment in Kolassa, which does not rule out the possibility of the dispute falling within the scope of matters relating to a contract, must be viewed as encouragement to proceed along these lines.
97. Therefore, the terms under which the bonds are offered for subscription by a State, as described by the referring court, cannot, in my view, be classified as a ‘chain of contracts’, within the meaning of the case-law of the Court. (104)
98. It is clear from the documents in the case-file, in particular the subscription agreement, that the Greek State entered into a contract with the ‘managers’ or participants in the primary market system who, as the first holders of the securities, may liquidate them on the secondary market. In other words, their role may be classified as a ‘distributor’ to investors in the secondary market on which the transactions concerning those bonds take place.
99. The Greek State, like any State issuing securities, also produced a document (offering circular) which sets out the key borrowing terms and legally constitutes the contract concluded with its creditors. (105) Therefore, in that legal relationship, the State undertakes to pay coupons and to repay the borrowing on maturity to all holders of securities, admittedly, not directly, but through the intermediaries which acquired the securities on behalf of the holder. In that relationship, it may also be considered that ‘the transfer of the security to the holder brings about an assignment of the rights incorporated in the security: as the subscriber is committed to every security holder ab initio, the holder has a personal right with respect to the issuer’. (106) A consistent approach is adopted in paragraph 91 of the judgment of 7 October 2015, Accorinti and Others v ECB. (107) It states that, ‘under the applicable private law, when purchasing State bonds … central banks, like the private investors, acquired the status of creditors of the issuing and debtor State’. (108)
100. Two additional arguments may be derived from the legislating State’s intervention for the purpose of amending the borrowing terms of the contracting State. First, the aim of the law at issue was to have a direct and immediate effect on the securities held by private institutional investors or natural persons, irrespective of the intermediation by financial bodies.
101. Secondly, that legislative initiative reveals that the State is perfectly aware of the scope of its commitments as the contracting State (109) vis-à-vis the holders of securities, (110) since it altered the content of those commitments before it defaulted and, therefore, the need to meet requests for the early repayment of the debt which would be addressed to it directly.
102. I conclude from all of these factors that ‘matters relating to a contract’, within the meaning of Article 7(1)(a) of Regulation No 1215/2012, covers the action by which the purchaser of bonds issued in a Member State seeks to assert claims arising from those securities against that State, in particular following the unilateral and retroactive adjustment of the borrowing terms by that State.
103. Consequently, it should be clarified the answers that may be given to the referring court with a view to determining the place of performance of that obligation underlying the claim.
C. Determination of the place of performance of the disputed obligation
104. The question arises as to whether, in a situation such as that at issue in the main proceedings, the ‘place of performance of the obligation in question’, within the meaning of Article 7(1)(a) of Regulation No 1215/2012, is that set out in the borrowing terms relating to the bonds in question or whether that place may change according to the transfer of claims attaching to those bonds, or even whether it is the place where the creditor collects the interest.
105. According to settled case-law, (111) where the parties do not designate the place of performance of the obligation at issue, this must be determined in accordance with the law which governs that obligation according to the rules of conflict of laws of the court before which the matter is brought.
106. As I have already set out, the issue of the bonds, which are subject to Greek law, is circumscribed by the provisions in the offering circular. In that document, the Greek Central Bank is designated as the ‘paying agent’, in accordance with Article 8(6) of Law No 2198/1994 which applies to State debt, the applicable law chosen is Greek law and the ‘bondholders’ are the ‘relevant participants of the Bank of Greece Book entry system’. I infer from this that the place of performance of the obligation, of the payment of coupons and the repayment of capital, which forms the basis of the claim is in Greece, in accordance with Law No 2198/1994. The transaction to convert the securities governed by Greek law, laid down in Law No 4050/2012, also demonstrates that this is the place where the decisions regarding the arrangements for the investments and their performance were taken.
107. In those circumstances, and in the light of my analysis concerning the classification of the transfer of the security to the holder in so far as it brings about an assignment of the rights incorporated in the security, I take the view that previous transfers are not capable of changing the determination of the place of performance within the meaning of Article 7(1)(a) of Regulation No 1215/2012. (112)
108. This interpretation is consistent with the requirement of predictability and legal certainty, contained in recital 15 of Regulation No 1215/2012, (113) since it has the effect of avoiding the possibility of the defendant being sued in a court of a Member State which he could not reasonably have foreseen if its determination were to depend on the choice of the place where the security is deposited and contribute to the sound administration of justice set out in recital 16 of that regulation.
109. Those objectives could no longer be attained if the place of performance had to be determined on the basis of the place where the interest due to the holder of a government bond is collected. (114)
110. Accordingly, I propose that the Court rule that Article 7(1)(a) of Regulation No 1215/2012 must be interpreted as meaning that the place of performance of a government bond is determined by the borrowing terms when that bond was issued, notwithstanding subsequent transfers of that bond or the actual performance in a different place of the borrowing terms relating to the payment of interest or the repayment of capital.
V. Conclusion
111. In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Oberster Gerichtshof (Supreme Court, Austria) as follows:
Principally:
– An action brought by a natural person who has purchased bonds issued by a Member State, against that Member State, seeking to enforce the initial borrowing terms or seeking damages for the non-fulfilment of those terms, on account of those bonds having been exchanged for bonds of a lesser value, that exchange having been imposed on that natural person by a law, adopted by the national legislature in exceptional circumstances, unilaterally and retrospectively amending the conditions applicable to the bonds by inserting a collective action clause enabling the majority of the bondholders to impose such an exchange on the minority, does not fall within the scope of ‘civil and commercial matters’ within the meaning of Article 1(1) of Regulation 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.
Alternatively, if the Court finds that the dispute is a ‘civil or commercial matter’ for the purposes of Article 1(1) of Regulation No 1215/2012:
– ‘Matters relating to a contract’, within the meaning of Article 7(1)(a) of Regulation No 1215/2012, covers the action by which the purchaser of bonds issued in a Member State seeks to assert claims arising from those securities against that State, in particular following the unilateral and retroactive adjustment of the borrowing terms by that State.
– Article 7(1)(a) of Regulation No 1215/2012 must be interpreted as meaning that the place of performance of a government bond is determined by the borrowing terms when that bond was issued, notwithstanding subsequent transfers of that bond or the actual performance in a different place of the borrowing terms relating to the payment of interest or the repayment of capital.