EUPillar LG Aachen, 16.12.2005

Summary

The plaintiffs worked together in a consortium on a construction project. By contract, they delegated the assembly work to a Belgian corporation. This contract was governed by German law and established German jurisdiction. It was accompanied by an unlimited, directly enforceable guarantee for contractual claims of the Belgian contractor. When the project progressed, bankruptcy proceedings were instituted on the Belgian corporation. The plaintiffs filed a claim for damages to the realization and liquidation statement and declared a set-off with a claim for work compensation of the Belgian corporation. The Belgian court held that due to the jurisdiction agreement in favor of German courts, the insolvency court did not have authority to decide whether and to which amount the claim for damages really existed. The plaintiffs then demanded the return of the directly enforceable guarantees of payment. The German court held that it had international jurisdiction over the case and based this assumption on the valid jurisdiction agreement of the parties. It stated that the Brussels I Regulation was applicable although the case has a connection to bankruptcy which is excluded from the scope of the regulation by Art. 1 (2)(b) Brussels I. Referring to the CJEU’s ruling in the case Gourdain ./. Nadler, the court argued that the case was not related closely enough to the bankruptcy proceedings and was not directly based on it as the claim for restitution could have been filed also without the bankruptcy proceeding being initiated. Therefore, the Brussels I Regulation is applicable and the jurisdiction agreement is valid with regard to Art. 23 (1) Brussels I. The question was whether the Brussels I Regulation or the Insolvency Regulation (EC) 1346/2000 were applicable. In German scientific literature and jurisdiction three different opinions are given on this problem. The first opinion claims that there is an unintentional regulatory gap between the Brussels I and the Insolvency Regulation. Therefore, autonomous international jurisdiction rules should be applicable. The second opinion states that it is necessary to handle the annex proceedings of bankruptcy proceedings under the scope of Brussels I. The third solution is the Explanation given by the Regional Court Aachen. This solution promotes justice in every individual case but also generates legal uncertainty. Regarding the outcome of the court’s decision on international jurisdiction it can hardly be doubted that it is the right one. Otherwise, the Belgian court had to deal with a case that has its closest relation to Germany as it is governed by German law and the parties communicated in German. In general, a submission to the CJEU on this topic would have been useful as it is not clear how annex procedures of bankruptcy proceedings should be handled in regard to international jurisdiction.