Summary
The plaintiff sues the defendant, a group parent company seated in the US, for payment of an occupational pension according to a pension scheme of which the plaintiff was assured by the parent company.
The defendant runs several language schools through various foreign companies around the world. According to his employment contract the plaintiff was 'Managing Director' of the A GmbH (Limited Liability Company) and four other subsidiaries of the defendant. Later he was also employed as 'Division Vice President Europe' of the newly founded 'European Division' which consists of the mainly legally independent companies of the company group. In this position the plaintiff coordinated the European activities of the defendant and was still under contract to the A GmbH.
In the first instance the action for pension provision was dismissed as inadmissible. The plaintiff now appeals against this judgment.
The second instance dismisses the previous judgment and declares the international jurisdiction of German courts. The Brussels I Regulation is applicable. The territorial scope of applicability of the regulation takes effect because of Art. 18(2) Brussels I whose requirements are met. The existence of a contract of employment between the parties is not disputed. The defendant argues that the plaintiff was under contract to the 'European Division' and not under contract to the defendant.
Therefore the court determines whether the defendant has a branch, agency or other establishment in Germany. It defines the terms referring to the CJEU’s judgment in C-33/78 and broadly discusses whether an ostensible existence of a subsidiary is sufficient for the application of Art. 18(2) Brussels I and whether the defendant caused such an ostensible existence of a legal situation. It takes into account the site notices of the defendant’s and the A GmbH’s websites which refer to each other and therefore create the appearance that the A GmbH is a subsidiary of the defendant.
Thereon the court declares that the dispute arises out of the operations of the branch. As a consequence the defendant may be sued in before German courts.
The court examines the requirements of Art. 18(2) Brussels I in a structured way. In German scientific literature it is undisputed that an ostensible existence of a legal situation is sufficient for the application of Art. 18(2) Brussels I. As the decision is based on the ostensible existence of a legal situation it is irrelevant if the companies have to be dependent on each other or not.
In contrast to this, the court examines whether the other conditions such as whether the contract of employment covers the claim for pension provision and if the dispute arises from the operations of the branch very cursory and superficial.
This was also criticized by the following instance which remitted the matter to the Regional Labour Court with the notice that further fact-finding is required.