EUPillar BGH, 16.9.2015 – VIII ZR 17/15

Summary

The claimant was an insolvency trustee of a Limited Liability Company which had concluded a purchase contract with the defendant before the opening of insolvency proceedings. The defendant declared a set-off with counterclaims. The insolvency trustee defended against these claims by stating them as invalid pursuant to § 96 (1) no. 2 InsO (German Insolvency Code). It was doubtful whether the insolvency trustee’s statement within his defense led to the applicability of the Insolvency Regulation because the German rule belongs to Insolvency Law. The court held that this fact would not allow assuming a close connection to insolvency procedure. It was relevant that the disputed claim was not closely connected to insolvency procedures. Therefore, Art 1 (2) (b) Brussels I did not apply to the dispute. The dispute was governed by the Brussels I Regulation. The lower instance courts denied the applicability of the Insolvency Regulation to the present case. The decision of the Federal Court of Justice is correct as the mere defense on the basis of rules within the Insolvency Law does not lead to a different assessment of the disputed claim. The means of defense cannot have a decisive influence on the international jurisdiction. The formal participation of the insolvency trustee cannot be considered as an indication for a close connection to insolvency procedures. It is relevant whether the claim which the parties argue about is closely connected to insolvency proceedings or not. In the present case, the insolvency procedure was opened after the contract was concluded between the parties. Therefore, it was reasonable to deny a close connection to the insolvency procedure.