OLG Düsseldorf; 2018-11-14; VI-U (Kart) 7/18
Decision by national courts in the field of European Union law — ECLI:DE:OLGD:2018:1114.U.KART7.18.00
Date: 2018-11-14
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82018DE1114(52)_ENG_SUMJURE
JURE summary
JURE summary
An automotive supplier (hereinafter ‘the plaintiff’) filed an application for a preliminary injunction against three German automobile manufacturers (hereinafter 'defendant 1', 'defendant 2' and 'defendant 4') and against a Spanish automobile manufacturer (hereinafter 'defendant 3'). Defendants 3 and 4 are wholly owned subsidiaries of defendant 1.
The plaintiff had been supplying the defendants with rear seat backrests since 1996. By letter dated 20 March, 2018, the defendants declared the ordinary termination of all contractual relations with the plaintiff at a 12 months' notice as of 31 March, 2019.
By issuing a preliminary injunction, the plaintiff seeks to continue business relations with the defendants. A judgment during the main proceedings is hardly to be expected before the expiry of the period of notice. The plaintiff seeks certainty in regard to the future validity of the supplier agreements following 31 March, 2019.
The Landgericht Dortmund (hereinafter 'the Court of First Instance') referred the first plaintiff's application against defendant 1 to another court and dismissed it as unfounded against defendant 2 and 4 due to lack of grounds for a provisional injunction and as inadmissible against defendant 3 for lack of international jurisdiction of German courts.
In June 2018, the plaintiff brought an action against defendant 1, 2 and 4. To date, no action has been brought against defendant 3.
The plaintiff's appeal against the order of the Court of First Instance at the Oberlandesgericht Düsseldorf (hereinafter 'the Court of Appeal') is admissible but not well founded. The German courts possess international jurisdiction pursuant to Article 7(1) of the Brussels I Regulation (recast) (1).
The agreement between the plaintiff and defendant 3 regarding the jurisdiction of Barcelona was not concluded in writing in accordance with the third sentence of Article 25(1)(a) of the Brussels I Regulation (recast) and is therefore invalid. However, the case in question does not require a decision, just like the question whether the plaintiff's application for a provisional injunction lacks sufficient certainty, and therefore being inadmissible as the defendants maintain.
During interim relief proceedings, actions are not decided upon substantively. The Court of First Instance may, unlike during the main proceedings, allow the application for a preliminary injunction to remain inadmissible if the application for such an injunction is unfounded. This is the case here.
The plaintiff is seeking an enforcement order against defendant 1 for the claims to performance under the supplier agreements which cover both the undisputed remaining term of the agreement until 31 March, 2019 and the period after expiry of the notice period from 1 April, 2019. However, the plaintiff is unable to provide evidence of existing, or at least imminent, grounds up until the expiry of the period of notice as the agreement is still ongoing. It is also difficult for the plaintiff to prove that his business operations are under threat from 1 April 2019 as he has a year to find new supplier options. In principle, the same also applies in the case of defendant 4.
The supply share attributable to defendant 2 is so negligible in comparison to the other defendants that, in this case as well, there is no threat to the plaintiff's business operations.
With regard to defendant 3 from Spain, there is no urgency given the circumstances. The fact that the plaintiff has not yet brought an action in the main proceedings precludes the presumption of urgency which is a precondition for the application of a provisional injunction.
The Court of Appeal dismissed the plaintiff's appeal.
(1) Council Regulation (EC) No 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.