Case number and/or case name
C-103/05 Reisch Montage AG v Kiesel Baumaschinen Handels GmbH (Second Chamber) [2006] ECR I-06827
Referring court and Member State
Austria, Third Instance, Oberster Gerichtshof
Summary
On 30 January 2004, Reisch Montage, a company established in Liechtenstein, brought an action for payment before the Bezirksgericht Bezau (Austria) (District Court, Bezau) against Mr Gisinger, who was domiciled in Austria, and against Kiesel, whose registered office was in Germany. Kiesel stood security for Mr Gisinger to the amount of EUR 8 689.22 and Reisch Montage sought repayment of that sum. By decision of 24 February 2004 the Bezirksgericht Bezau dismissed, under Austrian bakruptcy law, Reisch Montage’s action in so far as it was brought against Mr Gisinger on the ground that bankruptcy proceedings concerning his assets had been instituted on 23 July 2003 and were not completed at the time that action was brought. That decision became final. Kiesel disputed the jurisdiction of the court which was seised of the action, arguing that Reisch Montage could not rely on Article 6(1) of Regulation No 44/2001 to justify the Bezirksgericht Bezau’s jurisdiction since the action brought against Mr Gisinger was dismissed as inadmissible under Austrian bankruptcy law. By judgment of 15 April 2004 the Bezirksgericht Bezau upheld the objection of lack of jurisdiction raised by Kiesel and dismissed Reisch Montage’s action on the ground that that court lacked international and territorial jurisdiction. Hearing the case on appeal, the Landesgericht Feldkirch (Austria) (Regional Court, Feldkirch) set aside that judgment and dismissed the objection of lack of jurisdiction raised by Kiesel. Kiesel brought an appeal on a point of law (‘Revision’) before the Oberster Gerichtshof (Supreme Court), which decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Can a claimant rely on Article 6(1) of Regulation … No 44/2001 when bringing a claim against a person domiciled in the forum state and against a person resident in another Member State, but where the claim against the person domiciled in the forum state is already inadmissible by the time the claim is brought because bankruptcy proceedings have been commenced against him, which under national law results in a procedural bar?’ The Second Chamber of the CJEU stated that: “Article 6(1) … may be relied on in the context of an action brought in a Member State against a defendant domiciled in that State and a co-defendant domiciled in another Member State even when that action is regarded under a national provision as inadmissible from the time it is brought in relation to the first defendant. However, the special rule on jurisdiction provided for in Article 6(1) … cannot be interpreted in such a way as to allow a plaintiff to make a claim against a number of defendants for the sole purpose of removing one of them from the jurisdiction of the courts of the Member State in which that defendant is domiciled (see, in relation to the Brussels Convention, Case 189/87 Kalfelis [1988] ECR 5565, paras 8 and 9, and Réunion européenne and Others, para 47). However, this does not seem to be the case in the main proceedings.” It is unfortunate that the CJEU did not give fuller reasoning for upholding the application of Art 6(1) in this case given that AG Ruiz-Jarabo Colomer, a noted expert on private international law, in his Opinion wanted to disapply the provision because there was no risk of irreconcilable judgments as the proceedings against the anchor defendant had to be ruled as inadmissible at the outset of the proceedings.