Referring court and Member State
Germany, Third Instance, Bundesgerichtshof
Summary
This case concerning the interpretation of Arts 1(1) and 6(1) of Brussels I was referred to the CJEU in proceedings between the Land Berlin and 11 persons concerning the repayment of an amount overpaid in error following an administrative procedure designed to provide compensation in respect of the loss of real property during persecution under the Nazi regime. The original owner of a plot of land in East Berlin was forced to sell his plot to a third party under the Nazi regime. The plot was later expropriated by the German Democratic Republic. After German reunification, its ownership partly passed to the Land Berlin and the Federal Republic of Germany. 10 defendants (the successors in title of the original owner, including persons domiciled in Israel, the UK and Spain) made an application based on German Law for return of the plot. The Land Berlin, which also acted on behalf of the Federal Republic of Germany, had made a payment to them corresponding to the plot of that land, but it unintentionally had made an overpayment of about EUR 2.5 million which it sought to recover from the defendants on the basis of unjust enrichment (against 10 defendants, ie the successors) and a tortious act (against the other defendants’ lawyer) in Germany. The defendants domiciled outside Germany challenged the jurisdiction of the German courts. By an interim decision, the court dismissed the action of the Land Berlin as inadmissible with respect to them. The appeal court upheld the decision by stating that the German courts did not have international jurisdiction to determine the case brought against those defendants and that the dispute was a matter of public law which was therefore not a civil matter under Art 1(1) of Brussels I. On appeal on a point of law, the referring court asked some questions to the CJEU. By its first question, it asked whether the action concerns a civil and commercial matter under Art 1(1). Citing C 420/07 Apostolides and C 154/11 Mahamdia, the CJEU reaffirmed that although certain actions between a public authority and a person governed by private law may come within the scope of Brussels I, it is otherwise where the public authority is acting in the exercise of its public powers. By examining the basis and the detailed rules governing the bringing of the action, it found that the action relation to the right to compensation falls into ‘civil and commercial matters’ under Art 1(1). Other questions concerned the application of Art 6(1). After citing C 98/06 Freeport and C 145/10 Painer, the CJEU observed that both claims have their origin in a single situation of law and fact, ie the right to compensation, and directed at the same interest, ie the repayment of the erroneously transferred surplus amount. It accordingly found Art 6(1) is applicable where there is a close connection between the claims lodged against several defendants domiciled in other MS in the case where those defendants rely on rights to additional compensation which it is necessary to determine on a uniform basis. It then examined whether the existence of the domicile of a co defendant in another MS is a condition for the application of Art 6(1). It observed that the provision refers expressly to defendants domiciled in the EU and thus in order to sue a co-defendant before the courts of a MS under Art 6(1), it is necessary that that person should be domiciled in another MS. It held that Art 6(1) is not intended to apply to defendants who are not domiciled in another MS, in the case where they are sued in proceedings brought against several defendants, some of whom are also persons domiciled in the EU. It is a useful judgment in order to clarify the meaning of the close connection in Art 6(1) and to confirm the provision’s inapplicability to the defendants domiciled outside of the EU. The CJEU ensures the autonomous interpretation of ‘civil and commercial matters’ under Art 1(1) free from national law.