EUPillar BGH, 19.3.2015

Summary

Both parties are co-owners of a property in Germany. The plaintiff had a pre-emption right with regard to the ownership of the defendant. When the plaintiff used this right, the defendant withdrew from a contract with a third party. The third party sued the plaintiff and the defendant in Italy. The plaintiff now sues the defendant in Germany trying to enforce its pre-emption right. The court of first instance stayed the proceedings. The court of second instance requested a preliminary ruling of the CJEU. After this ruling, the court of first instance declined to stay the proceedings. The defendant is appealing against this decision. The court confirmed the decision of the second instance. The question was whether the court has to stay its proceedings according to Art. 27 Brussels I or Art. 28 Brussels I. With regard to Art. 27, the court, in line with the preliminary ruling of the CJEU, stated that the court second seised does not have to stay its proceedings if it has exclusive jurisdiction according to Art. 22 no. 1 Brussels I. Moreover, the court stated that all claims involve as their object rights in rem in immovable property. Therefore, Art. 27 Brussels I is not applicable. With regard to Art. 28 Brussels I, the court stated that the same principles hold true and it is, therefore, also not applicable since a decision of the Italian courts would be in violation of Art. 35 Brussels I. The judgement is in line with the preliminary ruling of the CJEU which was requested by the second instance court.