Case number and/or case name
BGH, 18.7.2008 – V ZR 11/08
Summary
The parties are brothers both possessing a property that is situated in Italy. The defendant has built a wall between the two parts the land had been divided into. The plaintiff claimed the recovery of the former state of their land as well as damages. The Local court denied the international jurisdiction of German courts, the Regional Court affirmed it.
The Federal Court of Justice affirmed the international jurisdiction of German courts. It held that claims concerning damages and recovery being based on the violation of property didn’t concern ‘rights in rem in immovable property’ within the meaning of Art. 22 no. 1 Brussels I.
It is settled case law that in order to assume the jurisdiction pursuant to Art. 22 no. 1 Brussels I it’s not sufficient that a right in rem is simply concerned by the action. The CJEU has stated that the legal situation in terms of the right in rem solely has indirect relevance to this kind of damage claims. In the present case the action didn’t directly concern the right in rem which has to be respected by everyone but the claim concerned the relation between the two brothers given the alleged tort between the parties. Therefore, the judgment is correct.