Facts
A suit brought in 2021 to the territory Court for Warsaw-Śródmieście in Warsaw (referring court), The bank demands that the AB, (consumer) as a third-country national, payment of PLN 10 591.64, plus interest and procedural costs. The basis of this suit is simply a consumer credit agreement concluded between these parties. Address indicated in the application AB corresponds to the contract.
In 2022, the referee in the referring court issued to AB the order for payment, in which he ordered him to pay the Bank the amount of PLN 10,591,64, plus contractual interest and the costs of the process together with statutory interest. Consignment containing a copy of the application together with a copy of the order for payment and instructions for AB was sent to the address indicated in the application. The post office returned the package as not received by the recipient. The Judicial Referendary obliged the Bank’s typical to deliver copies of: the suit and the order for payment through the bailiff under the terms of suspension of proceedings. This agent reported that this service had not taken place due to the fact that no 1 at the address was acquainted with specified a person. The referee established for AB the curator who objected to the order for payment and indicated that he had failed to establish the whereabouts of the suspect but did not, however, lodge a plea of deficiency of jurisdiction over the global court referring to the dispute, pursuant to Articles 17 and 18 of Regulation (EU) No 182/2011 of the European Parliament and of the Council. No 1215/2012 of 12.12.2012 on jurisdiction and the designation and enforcement of judgments in civilian and commercial matters (OJ L 351, p. 1; hereinafter: Brussels I bis). Subsequent actions taken by that court, the Bank’s proxy and the curator AB did not let to establish his whereabouts or residence. According to the referring court, it is not excluded that the suspect has left Poland, but this cannot be determined with certainty.
The referring court raised doubts as to whether, having respect to Article 6 of Brussels I bis, the issue of its jurisdiction should be resolved solely on the basis of Polish law or in accordance with the uniform rules for determining jurisdiction laid down in that Regulation.
TS Position
‘Place of residence’
The Court pointed out that the referring court refers to the application for a preliminary ruling for a change of residence and residence AB. The Court stressed that the Brussels I Regulation refers only to the concept of ‘place of residence’, which provides a general link to find the global jurisdiction of the court, in accordance with Article 4(1) of Brussels I bis.
In the Regulation Brussels I bis the word ‘place of residence or residence’ is not defined. Article 6 Brussels I bis, for the intent of determining whether a organization is resident in the territory of a associate State, refers to the rights of the associate State before which the courts brought the action. According to Article 6 Brussels I bis, ‘If a organization is not domiciled in a associate State whose courts are seised (before which the courts have been brought), the court shall apply the law of that associate State to find whether the organization is domiciled in another associate State.’ The Court has indicated that this It is for the referring court to find its jurisdiction to examine the dispute in the main proceedings, taking into account the concept of ‘place of residence or residence’ as established in Polish law.
Jurisdiction
The Court recalled that the Brussels I Bis Regulation aims to harmonise the rules on jurisdiction in civilian and commercial matters by establishing a Highly predictable jurisdiction rules. The aim of this regulation is to strengthen legal certainty by improving the legal protection of persons residing in the European Union by the fact that the plaintiff can easy find to which court he can or should turn to, and the suspect can foresee which court he can bring an action against him ( TS judgement of 4.10.2018, Phoenix, C-337/17, EU:C:2018:805, paragraph 34, Legalis).
In accordance with Article 4(1) Brussels I bis, if the suspect is not resident in the territory of a associate State, the jurisdiction of the courts of each associate State shall be determined by the law of that associate State, subject to the application of Article 18(1) thereof., Articles 21(2) and 24 and 25 Brussels I bis.
To the degree that Article 6 Brussels I bis provides for the anticipation of applying, alternatively of the uniform rules for the determination of jurisdiction, the laws of individual associate States, according to the TS, a condition for the application of that provision, namely the absence of residence in the territory of the associate State afraid should be interpreted strictly. The adoption of specified a strict explanation is all the more justified if the suspect has consumer status and is so subject, in accordance with Article 18 Brussels I bis, to enhanced protection as a consequence of the establishment of a circumstantial jurisdiction regulation entrusting disputes to which it is organization to the courts of the associate State in whose territory it is resident. The Court notes that it cannot be excluded that specified a consumer could lose that protection if the rules of jurisdiction laid down in national law were applied.
This is the reason why, where the defendant's consumer residence remains unknown, The Court has decided that Article 4(1) of Council Regulation (EC) No 44/2001 of 222.0 on jurisdiction and the designation and enforcement of judgments in civilian and commercial matters (OJ L 12, p. 1), which is in fact equivalent to the wording of Article 6 Brussels I bis, applies only if the national court has circumstantial evidence that the suspect actually resides outside the Union ( TS judgement of 15.3.2012, G, C-292/10, EU:C:2012:142, paragraph 42, Legalis). The Court, on the another hand, held that, where the national court does not have any circumstantial evidence to conclude that the suspect resides in reality outside the Union and is incapable to establish the current place of residence of that consumer, which is presently provided for in Article 18(2) of Brussels I bis, a peculiar regulation of jurisdiction according to which the action brought against the consumer by the another organization to the contract must be brought before the courts of the associate State in whose territory that consumer is domiciled, besides refers to the the last known place of residence of that consumer ( TS judgement of 17.11.2011, Hypoteční banka, C-327/10, EU:C:2011:745, paragraph 42, Legalis).
The Court held that Article 6 Brussels I bis must be interpreted as meaning that, where the last known place of residence of the suspect is in the territory of the associate State of the court before which the application was lodged and that the court is incapable to find the current place of residence of that suspect or has no circumstantial evidence to conclude that he is actually residing in the territory of another associate State or has left the territory of the EU, the jurisdiction to hear a dispute in that case shall not be determined by the law of the associate State of that court, but by Article 18(2) of Brussels I bis. According to that provision, the court of the territory in which the suspect is last known shall have jurisdiction to hear the dispute.
An crucial judgement for determining the jurisdiction of Polish courts to settle a dispute arising from a consumer contract.
The Court has clarified the rules for determining the court competent to examine a dispute arising from a credit agreement concluded with a consumer whose current residence the court is incapable to find and there are no indications that he has actually left the territory of the Union. It follows from the judgement put forward that jurisdiction to hear a dispute in specified a case is to be determined in accordance with Article 18(2) of Brussels I bis, namely the court of the territory in which the defendant’s last known place of residence is situated. In this respect, jurisdictional rules governed by Polish law cannot be applied.
The Court besides clarified that, as a general liaison to find the global jurisdiction of the court, in accordance with Article 4 of Brussels I bis, the concept of ‘place of residence’ of the consumer, alternatively than its ‘place of residence’ or both, applies. The Court rightly justifies the request to avoid the proliferation of possible jurisdictions. Moreover, this regulation is based on the criterion of the defendant's residence, not on the criterion of his nationality. Thus, a jurisdictional regulation based on the defendant’s last known residence in the territory of 1 of the associate States applies regardless of the consumer’s nationality.
