PIL instrument(s)

Case number and/or case name

LG Mönchengladbach, 5.2.2009 – 10 O 422/07

Details of the court

Germany, First Instance

Articles referred to by the court

Date of the judgement

04 February 2009

Appeal history

CJEU's case law cited by the court

Summary

The defendant is a British broker company which helped a German time bargain broker to intentionally damage the plaintiff in an unethical way. The plaintiff brought an action for damages due to losses in time bargains and option business. The court stated that there was no international jurisdiction in favour of the German courts. The judgment is based on the consideration that the general rule of Art. 2(1) Brussels I is not overridden by Art. 5 et seq. Brussels I as the plaintiff does not explicitly assert contractual claims (Art. 5.1, 5.5,16(1)). Furthermore, Art. 5 no. 3 Brussels I was not applicable. In this point the court refers to the CJEU jurisdiction in “Kalfelis”. The court further argues that even if the asserted claim from § 826 BGB was qualified as ‘torts, delict or quasi-delict’ within the meaning of Art. 5 no.3 Brussels I the place where the harm arose or took effect does not lie in the court district but in London. The court’s judgment can’t be considered correct. This was also stated by the appeal. In fact the (potential) competition between claims from torts and contractual claims in this case is not contrary to the application of Art. 5 no. 3 Brussels I. The aim and purpose of Art. 5 no.3 is to guarantee a better jurisdiction by granting international jurisdiction to the court that has the closest connection to the place where the harm arose or took effect. In the given case, this place lies in Germany as the client’s acquisition took place in Mönchengladbach (Germany). Therefore, the annulment of the Regional Court’s judgement is justified.