BGH; 2018-05-17; IX ZR 27/16
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2018:170518BIXZR27.16.0
Date: 2018-05-17
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82018DE0517(52)_ENG_SUMJURE
JURE summary
JURE summary
The case concerns the determination of international jurisdiction of German courts in relation to a dispute (counterclaim for enforcement) which was decided upon by the Bundesgerichtshof (hereinafter ‘the Supreme Court’).
The case was brought before the Landesgericht Karlsruhe (hereinafter ‘the Court of First Instance’). The case was then referred to the Oberlandesgericht Karlsruhe (hereinafter ‘the Court of Appeal’), which ruled on the non-admissibility of the appeal. The appeal lodged with the Court of Appeal challenging the non-admissibility of the appeal was dismissed at the plaintiff’s expense.
In resolving the question of international jurisdiction, the new Lugano Convention (1) was applied. The exclusion of the applicability of the Lugano Convention under Article 1(2)(b) relates only to actions which derive directly from, and are closely connected to, insolvency proceedings. Article 22(5) of the new Lugano Convention does not apply to a counterclaim for enforcement based on the fact that the enforceable claim has lapsed by set-off or on an agreement preventing enforcement.
It follows from the application of the new Lugano Convention that the German courts lack international jurisdiction. However, the plaintiff has the option of asserting the claim for set-off before the Swiss courts in the context of follow-up bankruptcy proceedings conducted in Switzerland.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.