The assignment of credit does not affect the determination of the competent court and of the jurisdiction

The criteria established by Regulation (EU) No. 1215/2012, for the purpose of identifying the competent court within the European Union, must be complied with, even if the assignee of the credit has filed the claim before the court next seised by claiming an obligation arising from the contract concluded between the assignor and the third party and for which a judgment before another court is pending courts of the European Union (in this case the United Kingdom[1]).

This was the decision of the Supreme Court, sitting in plenary session, which was asked to resolve a question concerning jurisdiction in a case in which Alfa[2], in the proceedings pending before the Italian court instituted by the assignee of the credit, Gamma, objected, pursuant to Article 29 of Regulation 1215/2012, to the lack of jurisdiction of the Italian court in favor of the English court, before which were pending proceedings previously instituted by Alfa in which, however, Gamma had not been a party.

The Supreme Court, therefore, in examining the objection of Gamma, which excluded the existence of lis pendens[3], also pointing out that it was an assignee of the credit, reiterated that, by virtue of the so-called connecting factor in contractual matters under Article 7 n. 1 of the EU Regulation, a person may be sued in a Member State other than that of his domicile, if the court seised is that of the place of performance of the obligation relied on in court (in the present case in Great Britain).

The connecting factor set out in Article 7 of the EU Regulation, therefore, is to be understood as applying not only in cases where there is a dispute between the contracting parties, but also when a third party, extraneous to the original contractual relationship, brings an action against the parties to the contract which in any event stems from the contract itself.

In conclusion, the Court, recalling a principle clarified several times by the EU Court of Justice – according to which an assignment of a credit cannot affect the determination of the competent court – affirmed the identity of the position of the assignee of the credit with that of the assigning creditor, establishing, in this case, the lack of jurisdiction of the Italian court in favor of the English court.

 

Desiree Pasquariello

[1] The Supreme Court clarified the applicability of the EU Regulations in this case on the grounds that the proceedings before the Italian court had been brought before the effectiveness of the withdrawal agreement concluded between the European Union and the United Kingdom.

[2] Alfa had entered into a contract with Beta for the supply and installation of an industrial kitchen at its premises in the United Kingdom.

[3] Alfa had entered into a contract with Beta for the supply and installation of an industrial kitchen at its premises in the United Kingdom.