EUPillar OLG Naumburg, 12.12.2006

Summary

The parties argued about claims from a void contract. The plaintiff purchased a time-share right by joining an association having its seat in Austria. The Regional Court refused the action because of a lack of international jurisdiction. The Higher Regional Court contested the first instance court’s decision by declaring that time-share rights couldn’t be considered as rights in rem when having been purchased by concluding a membership contract. Therefore German courts weren’t internationally competent under Art. 22 no. 1 Brussels I. With respect to claims being made regarding the void contract the court further stated that it was decisive whether the unfulfilled primary obligation was contractual within the meaning of Art. 5 Brussels I. Art. 22 no. 1 Brussels I requires a clear relation to a right in rem. It is not sufficient that the contract that is being concluded establishes the membership in the association. It is however not clear if claims regarding unjust enrichment can establish the venue of Art. 5 no. 1 Brussels I. Given the fact that claims resulting from unjust enrichment are being considered as torts within Rome II it seems doubtful whether they can be brought under the venue of contractual claims in Brussels I. Additionally, Recital 7 Rome II has to be considered within the decision. The court therefore should have made a request for a preliminary ruling by the CJEU.