EUPillar BGH, 6.5.2013

Summary

The parties argued about damage claims resulting from a contract on capital investment. The German procedural law in Art. 36 no. 3 ZPO (German Code of Civil Procedure) states the determination of the court having international jurisdiction by the higher instance court. The Higher Regional Court intended to differ from a jurisdiction given by another Higher Regional Court. According to German law (Art. 36 (3) ZPO) this activates the necessity of a reference to the Federal Court of Justice. It was doubtful whether the determination of the court that is internationally competent pursuant to Art. 36 no. 3 ZPO is influenced by Brussels I. The Federal Court of Justice first held that the contract between the parties fell within the meaning of Art. 15 Brussels I. The classification as a consumer contract within the meaning of Art. 15 Brussels I wasn’t opposed by the fact that the specific way of capital investment consisted in a participation in a limited partnership. It was decisive that the plaintiff had concluded the contract for private purposes. The court further held that the discretion granted by Art. 36 no. 3 ZPO was restricted if the litigation was governed by an exhaustive jurisdiction according to Brussels I. In that case, the court couldn’t overcome the venue stated by European law. The judgment is correct because of the primacy of EU law. The rule in the German Code of Civil Procedure can’t be interpreted as meaning to offer the possibility to determine a venue without regard to European rules on jurisdiction.