PIL instrument(s)

Case number and/or case name

KG Berlin, 19.7.2013 – 6 U 103/11

Details of the court

Germany, Second Instance

Articles referred to by the court

Date of the judgement

18 July 2013

Appeal history

CJEU's case law cited by the court

Summary

The parties argued about damage claims resulting from a life insurance contract. The claims brought up by the plaintiff had been assigned to him by his parents. It was doubtful whether German courts were internationally competent pursuant to Art. 9 (1) (b) Brussels I. The court held that Art. 9 (1) (b) Brussels I didn’t apply to the case that the disputed claims were brought up by the assignee. The wording of Art. 9 couldn’t be extended to that case. The rule was relevant only for the insured person. The court further held that a potential application would have required that the assignee’s position in dispute called for the same protection by Art. 9 (1) (b) Brussels I as it was granted for the insured person. This couldn’t be assumed: the assignment had solely been performed in order to facilitate the tactical procedure in the proceedings. Therefore a specific need for protection to the extent granted for insured persons couldn’t be stated. The judgment is correct. First, an extension of the rule’s scope of application would lead to an interpretation that clearly isn’t covered by its wording. Also, regarding consumers the CJEU held in C-89/91 (Shearson Lehman Hutton) that the Regulation protected the consumer only in so far as he personally was the plaintiff or defendant in proceedings [paragraph 23]. In terms of need for legal protection the consumer’s position can be compared to the position of policyholders. Both parties can be considered as the economically weaker party. The purposes of Art. 9 et seq. and Art. 15 et seq. are comparable. The guidelines stated by the CJEU can therefore be transferred to the present case. In scientific literature some however introduced a distinction: if the assignee was a family member of the assignor the protection of Art. 9 (1) (b) Brussels I should be extended to the assignee. But this differentiation seems to lead to a loss of legal security. It further seems to oppose the case law of the CJEU and therefore shouldn’t be applied to the present case.