Case number and/or case name
BGH, 12.6.2007 – XI ZR 290/06
Summary
The defendant is an American financial institute based in New York. The plaintiff based in Germany brought an action for damages because of alleged deficits in accounting. He had consigned money in a bank that belonged to the defendant and that was situated in Munich, Germany. This representative office has been closed in 2004 and further has been deleted from the German commercial register.
The court had to decide whether German courts were interna-tionally competent. The first instance court and the second instance court denied the international jurisdiction of German courts. The Federal Court of Justice confirmed these judg-ments. It held that the scope of application of Brussels I wasn’t given if a German investor had raised claims against a defendant not being based in the European Union or the Eu-ropean Economic Area. The defendant further couldn’t be deemed to be domiciled in a Member State pursuant to Art. 15 (2) Brussels I when the German branch had been closed before the action was brought.
It is doubtful whether the professional based in a Third State can evade from the jurisdiction granted by Art. 15 (1) via Art. 15 (2) Brussels I by closing a representation office in the con-sumer’s Member State after the contract was concluded be-tween the parties. In the present case the defendant even had advised the plaintiff to if necessary contact another repre-sentative office in Germany in frame for the closed one. The jurisdiction in the EU single market further would have been foreseeable for the defendant. It seems possible that Art. 15 (2) Brussels I should have been interpreted more extensively in the present case.