CJEU Rules on Jurisdiction against Defendant Previously Domiciled in the EU

On 11 April 2024, the CJEU delivered its judgment in case C-183/23, Credit Agricole Bank Polska.

The case was concerned with a consumer who was previously domiciled in a Member State, but who had relocated to an unknown location. It raised the issue of the territorial scope of the Brussels I bis Regulation. The CJEU confirms its previous case law in this respect.

The court also applies its previous case law to avoid answering a second question relating to submission to jurisdiction.

Background

Credit Agricole Bank Polska SA claimed the amount of 10 591.64 zlotys (PLN), plus interest and legal costs, under a credit agreement for the purchase of an Apple 11 Pro phone concluded by the bank with the defendant, a consumer who was a third State national. Both the credit agreement and the application indicated an address in Poland for the defendant. A Polish court issued an order for payment against the defendant.

Attempts to serve a copy of the application together with a copy of the order for payment and instructions for the defendant were unsuccessful. The Polish court appointed a representative in absentia, who is a lawyer, for the defendant. The said representative lodged a statement of opposition to the order for payment, without raising any objection with respect to the jurisdiction of the Polish court. The efforts of the court and the representative to establish the address of the defendant brought no results.

Knowing that it should asses ex officio its jurisdiction, the Polish court wondered whether it should do so on the basis of Polish rules of jurisdiction or the rules of the Brussels I bis Regulation, and referred the matter to the CJEU.

Ruling

Unknow domicile

The first question asked to the court was whether the Polish court could rely on the Brussels I bis Regulation to determine its jurisdiction in the absence of evidence that the defendant was still domiciled in a Member State. As readers will not know, domicile in the EU of the defendant is the requirement for the application of most jurisdictional rules of the Brussels I bis Regulation.

The CJEU confirms its previous case law. It rules that where the defendant used to be domiciled in a Member State, the fact that s/he has relocated to an unknown location is not sufficient to disapply the Regulation. The Court had already hold so in a consumer case in Hypoteční banka (case C‑327/10), and in a tort case in de Visser (case C‑292/10).

The Court confirms that the rationale for this solution is that the scope of the Regulation should be interpreted broadly. In Hypoteční banka, the court had further explained that divergent national rules were a problem in so far as they introduce legal uncertainty for plaintiffs. In Credit Agricole Bank Polska, the court repeats that this is all the more so for consumers, as national law might not offer them the same protection by securing the jurisdiction of the court of their domicile. The fact that Member States might want to make the conscious policy decision of having different national rules does not seem worthy of any consideration. This is not a surprise, and is consistent with recent cases of the court.

In this context, maybe the European Commission should act accordingly and propose to adopt uniform rules with respect to third states. If the Member States reject this proposal again, maybe the CJEU will finally hear that the Member States are happy to regulate the jurisdiction of their courts with respect to third states, and that this should be respected.

Submission to Jurisdiction

A more interesting question was whether the defendant had submitted to jurisdiction under Article 26 of the Brussels I bis Regulation.

Unfortunately, the court declines to answer on the  ground that Article 26 is a subsidiary rule of jurisdiction which only applies where no other rule grants jurisdiction to the court. The court had already ruled that this conclusion should be drawn from the language of Article 26, which grants jurisdiction “apart from jurisdiction derived from other provisions of this Regulation” (see Case C‑464/18, Ryanair DAC).

Irrespective of the desirability and usefulness of this interpretation, there was another reason to think that Article 26 could not have been used in this case. The court has already ruled that a defendant could not be considered to submit to jurisdiction by entering into appearance by a representative appointed in abstentia (Case C‑112/13). This was the question of the referring court. It would not have been hard to answer it.

Unfortunately, it does not seem that the issue of whether the operation of Article 26 requires the domicile of any party in the EU was raised. Of course, the court does not answer it.