PIL instrument(s)

Case number and/or case name

OLG Rostock, 4.6.2014 – 1 U 51/11

Details of the court

Germany, Second Instance

Articles referred to by the court

Date of the judgement

03 June 2014

Appeal history

CJEU's case law cited by the court

Summary

The parties argued about claims against the company in its foundation phase. According to German jurisdiction the partner are personally liable in terms of claims against the company in its foundation phase. This obligation only concerns the inner relation between company and the partners. The claimant was the insolvency administrator of the company. He brought an action against the company regarding claims that arose in its foundation phase. It was doubtful whether German courts were internationally competent pursuant to Brussels I. The court held that Brussels I applied to the case. The insolvency regulation solely concerned proceedings which were directly connected to the company’s insolvency. The present claims didn’t concern the insolvency of the company but the phase of the company’s foundation. It further held that Art. 5 no. 1 (a) Brussels I applied to the case because the agreement between the partners was voluntarily established legal relationship. The judgment is correct. The claims that have been assessed by the claimant concerned the re-financing of the company. These claims were based on § 11 (2) GmbHG (German Law on Limited Liability Companies). The rule doesn’t require the existence of insolvency proceedings.