EUPillar OLG Stuttgart, 19.01.2005

Summary

The plaintiff is the property manager of a homeowner association. The defendant was part of this association until summer 2002. Due to an economic plan of the association, the defendant had to pay 415 Euros from the beginning of 2002. He didn’t fulfill his obligations and moved to Spain in 2003 where he received a corresponding payment order of the Local Court Stuttgart. He filed an objection to the Local Court Nuertingen which was refused. After lodging an unsuccessful complaint to the Regional Court Stuttgart, he now appeals before the Higher Regional Court Stuttgart. The court does not answer question whether the claim for payment of the condominium fee lies within the scope of Art. 22 (1) Brussels I Regulation as German courts have international jurisdiction pursuant to Art. 5 (1) (a) Brussels I. In doing so, the court interprets 'matters relating to a contract' in Art. 5 (1) (a) Brussels I widely in accordance with the various CJEU judgments it refers to. It compares the homeowner association to a stock company and an association as the interests are similar and the joining of these associations creates a close connection between the members. Therefore, the court considers the claims arising from this relation as contractual claims. After qualifying the claim as contractual the court determines the place of performance on the basis of Art. 5(1)(a) Brussels I through national conflict of law rules and locates it in Germany. The qualification of payment claims of a homeowner association was highly disputed in German jurisdiction and literature so that no clear preponderance could be found. That is why the court didn’t decide this question. Nevertheless a decision on this question would have been helpful to establish a clear understanding of the character of such claims. Nowadays it seems more or less accepted that these claims are based in the personal relationship between the members and not a corollary of the ownership itself, so that the exclusive venue of Art. 22 (1) Brussels I does not apply. Regarding the determination of the place of performance it is not doubted that this is done through national conflict of law rules in the scope of Art. 5 (1) (a). In general it is noteworthy how closely the courts works with the CJEU’s judgments and how often it refers to it.