EUPillar LG München I,12.2.2010

Summary

The defendant rented a property from the plaintiffs and became insolvent. The plaintiffs canceled the contract shortly before that event with effect from 19 January 2009. Now, they sue the defendant for compensation for use. On his part, the defendant makes a counter-claim for refund of the paid rent since march 2007. The court bases its international jurisdiction for the claim for compensation for use on Art. 3(1) Insolvency Regulation. It argues that the defendant’s counter-claim is inadmissible as far as it is based on §§ 30, 31 GmbHG old version (German LLC law). The counter-claim lies within the scope of Art. 6(3) Brussels I as this claim is rooted in the partnership agreement of the defendant. However, the court takes the view that the connection between the claim and the counter-claim does not exist as it is required by Art. 6(3) Brussels I. The lacking identity of the contracts on which the claims are based is obvious. Also the underlying facts are not the same even though the claims both refer to the same property and may be subject to offset. The court’s reasoning in regard of an sufficient connection through underlying facts is not understandable as in German scientific literature the issue is not explicitly discussed and no reference to another judicial decision is given by the court. Although the requirements for a connection within the meaning of Art. 6.3 are higher than within the meaning of Art. 28(3) it remains unclear which requirement according to the court would cause an adequate connection between the claims. The court mentions the possibility of a preliminary reference earlier in its judgment in relation to Art. 3(1) Insolvency Regulation. It would have been adequate to make a preliminary reference in this context in order to further substantiate the requirements of a sufficient connection within the meaning of Art. 6 no.3 Brussels I.