EUPillar OLG Celle, 8.9.2009

Summary

The plaintiff claimed for damages because of a breach of contract. The plaintiff is an English insurance company that initiated proceedings concerning a settlement (Scheme of Arrangement) pursuant to p. 425 of the British Companies Act 1985. The court had to decide whether a ‘scheme of arrangement’ could be considered as a ‘judgment’ within the meaning of Art. 32 et seq. Brussels I. The court found that a scheme of arrangement concluded by an insurance company and certain groups of its policyholders couldn’t be considered as a ‘judgment’ within the meaning of Art. 32 Brussels I. The court held that a Scheme didn’t concern a dispute between the company and the insured persons regarding claims between each other but it solely showed the company’s effort to arrange reorganization without an insolvency procedure. This judgment was contested by the Federal Court of Justice. The court held that in the present case it wasn’t relevant if a Scheme of Arrangement could be considered as a ‘judgment’ within the meaning of Art. 32 Brussels I. In any case, the international jurisdiction of German courts wasn’t given because of Art. 8, 12 (1), 35 Brussels I. Judgments could – pursuant to Art. 35 (1) Brussels I – only be recognized when there was no infringement of a rule of chapter II. One of these rules was Art. 12 (1) Brussels I which had to be applied to insurance issues, see Art. 8 Brussels I. The court founded its decision on the purpose of Art. 8 et seq. Brussels I: these specific rules were based on socio-political deliberations and aimed to achieve protection of the economically weaker party. According to the court, Art. 8 Brussels I had to be interpreted in an extensive way. The insurer should be prevented from the possibility of changing the insured person’s rights fundamentally without being obligated to respect the venue pursuant to Art. 12 (1) Brussels I. Regarding the aspect that Art. 32 Brussels I however requires a contradictory procedure or at least the possibility of such a procedure, the judgment of the Higher Regional Court seems to be correct.