LG Bonn; 2017-03-03; 2 O 169/15
Decision by national courts in the field of European Union law — ECLI:DE:LGBN:2017:0303.2O169.15.00
Date: 2017-03-03
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82017DE0303(51)_ENG_SUMJURE
JURE summary
JURE summary
A Greek national (hereinafter ‘the plaintiff’) acted as an intermediary between three investors and an entrepreneur, all of Greek citizenship. The entrepreneur was the target of a claim until his death when his wife became his legal successor (hereinafter ‘the defendant’).
The three investors provided a substantial monetary contribution to the defendant's project and were promised a doubling of their investment within ten months. Within this time frame, the defendant failed to deliver the promised benefits. The three investors then appointed the plaintiff to collect the debts, namely the sums invested as well as interest.
The plaintiff was granted a writ of execution by the Amtsgericht Euskirchen (hereinafter ‘the Court of First Instance’) in April 2013. In June 2013, a European order for payment was confirmed by the Central Dunning Court. The plaintiff declared to the authorities that she did not know the address of the defendant other than the one he declared in Germany.
In April 2015, the defendant appealed the enforcement measures taken against him. In particular, he claimed that he was only informed of the proceedings in 2015 and that the measures were obtained fraudulently. The court approved the appeal.
The plaintiff petitioned the Landgericht Bonn (hereafter ‘the Court of Appeal’) requesting the annulment of the previous judgment and the reinstatement of the orders for payment.
The validity of the enforcement measures taken against the defendant depends on the establishment of his place of permanent residence on which the parties disagree. The Court of Appeal recalls that in application of Article 62(1) of the Brussels I Regulation (Recast) (1), the legal status of the defendant's domicile must be determined in accordance with German law, i.e., Articles 7 et seq. of the BGB (2).
Article 7(1) of the BGB provides that permanent establishment at a single place is necessary to establish a domicile. It derives from the legal desire establish the permanent centre of one's residence. Several places of residence are also possible if they are also regular and central to life. Registration at a certain place is not a prerequisite for acquiring a residence, and registration alone is not sufficient evidence to establish residence, although it is an important indication.
This indication is disproved in the present case. Indeed, the plaintiff is alleged to have used fraudulent methods to obtain the measures ordered against the defendant. In particular, the plaintiff persuaded him to take up residence in Germany at the home of the plaintiff's mother during occasional visits in order to use this address during the proceedings. There is no evidence that the defendant has expressed a desire to make Germany the centre of his life.
Therefore, the plaintiff could not sue the defendant in Germany because the defendant was not domiciled there. According to Article 4 of the Brussels I Regulation (recast), the defendant can only be sued in Greece.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Bürgerliches Gesetzbuch (Civil Code).