Case number and/or case name
OLG Karlsruhe, 22.12.2009 – 13 U 102/09
Details of the court
Germany, Second Instance
Articles referred to by the court
Brussels I
Article 1
Paragraph 2
SubParagraph b
Article 5
Paragraph 1
SubParagraph a
Paragraph 1
SubParagraph b
Indent 1
Paragraph 3
Date of the judgement
21 December 2009
CJEU's case law cited by the court
Summary
The insolvency trustee of a German limited company (GmbH) claims for a restitution of payments from the former manager of the company domiciled in France. It was doubtful whether the action fell within the scope of application of Brussels I.
The court held that the action didn’t fall within the scope of application of the Insolvency Regulation but under the term ‘matters relating to tort’ within the meaning of Art. 5 no. 3 Brussels I.
The action didn’t directly concern insolvency proceedings. Compared to LG Flensburg, 25/11/2009 – 6 O 10/09 where there was given an action concerning the contestation of insolvency, in the present case the claim for restitution could have been made without initiating an insolvency procedure. Therefore it seems reasonable to make a difference between these two types of claims. The liability of the manager pursuant to § 64 GmbHG (German law on companies) doesn’t necessarily require the initiation of an insolvency procedure. The judgment is correct.