PIL instrument(s)

Case number and/or case name

OLG Düsseldorf, 14.2.2006 – 3 W 188/05

Details of the court

Germany, Second Instance

Articles referred to by the court

Date of the judgement

13 February 2006

Appeal history

CJEU's case law cited by the court

Summary

The parties argued about the declaration of enforceability granted by a German Regional Court. The declaration concerned a judgment from an Italian court according to which one of the litigants (a German insurer) was obliged to pay a certain sum because of an insurance contract. The court had to consider whether the Italian court’s judgment could be declared enforceable in Germany. The court held that in general the lack of international jurisdiction according to Art. 35 Brussels I was contrary to the declaration of enforceability. But, the court held that the lack of international jurisdiction could only be claimed by the insured person. There was the necessity of a teleological interpretation that restricted the scope of application of Art. 35. This according to the court was necessary in order to promote the protection of policyholders. The court’s opinion is shared by a lot of comments in scientific literature. It is however not uniformly accepted to perform such a restrictive interpretation of Art. 35 Brussels I. The court should have made a preliminary reference because the issue directly concerns the interpretation of an act of an institution within the meaning of Art. 267 TFEU and substantially changes the way of application of the rule in Art. 35 Brussels I.