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 a claim for damages due to losses in time bargains and option business.
The question was whether German courts had jurisdiction over this case.
The Regional 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. 5.3 Brussels I is viewed as non-applicable because the asserted claim from § 826 BGB (German civil code) rests on the contractual agreement between the plaintiff and the defendant. On this point, the court refers to the CJEU jurisdiction in “Kalfelis”.
Moreover, the court argues that even if the asserted claim from § 826 BGB was qualified as ‘torts, delict or quasi-delict’ within the meaning of Art. 5.3 the place where the harm arose or took effect does not lie in the court district but in London.
In contrast, the Higher Regional Court refers to the statutory system which states that Art. 5.3 Brussels I is an exemption from the general rule of Art. 2(1) Brussels I. This exemption is justified by the principle of the closest connection between the place of jurisdiction and the place where the harm arose or took effect. Therefore, the rule in Art. 5 no. 3 Brussels I had to be interpreted restrictively.
The (potential) competition between claims from torts and contractual claims in this case is no valid reason to break the rule of Art. 5.3 Brussels I.
Therefore, the Higher Regional Court states that German courts had jurisdiction over the case.