The parties argued on restructuring measures undertaken in a stock company. The stock company’s supervisory board had agreed on purchasing shares of construction companies. The plaintiff claimed for an injunction and rescission of those measures. The first instance court rejected the action because of a lack of international jurisdiction.
The court decided that German courts were internationally competent to rule the issue. It held that actions of minority shareholders based on the figure ‘Qualifiziert faktischer Konzern’ (stadium of a group in that due to a high amount of influences of the head company circumstances have gotten so confusing that it is impossible to isolate singular harmful impacts) fell within the scope of application of Art. 5 no. 3 Brussels I. Further, the fact that claims could be brought up against the dominating as well as against the dependent company wasn’t sufficient to assume the venue of Art. 6 no. 1 Brussels I. In case of the ‘Qualifiziert faktischer Konzern’ there further was no contractual relation between the dominating and the dependent company which excluded the venue of Art. 5 no. 1 Brussels I.
It isn’t clear whether the court’s interpretation of Art. 6 no. 1 Brussels I can be maintained given the jurisdiction of the CJEU who stated a restrictive interpretation of Art. 6 no. 1 since economic considerations concerning the proceedings shouldn’t have a negative influence on legal security and foreseeability of jurisdiction places. In the present case it however seems doubtful if legal security and the foreseeability to possibly be sued are affected: it doesn’t seem unacceptable for the dominating company to foresee being sued in a place where the depending company can be sued for an activity that has been ordered by the dominating company. In this regard the decision seems doubtful. Concerning the statement on Art. 5 no. 1 the decision is correct: the de facto control based on stock corporation law doesn’t require a contractual relation between the two involved companies. In German scientific literature it is almost unanimously accepted that actions based on the figure ‘Qualifiziert faktischer Konzern’ fall within the scope of the autonomous interpretation of Art. 5 no. 3. Therefore the judgment so far is correct.