OLG Frankfurt; 2022-10-27; 11 SV 34/22
Decision by national courts in the field of European Union law — ECLI:DE:OLGHE:2022:1027.11SV34.22.00
Date: 2022-10-27
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82022DE1027(52)_ENG_SUMJURE
JURE summary
JURE summary
This case concerns a question of international and local jurisdiction referred to the Oberlandesgericht Frankfurt am Main (hereinafter ‘the Court of Appeal’).
A condominium owners’ association (1) (hereinafter ‘the plaintiff’) brought proceedings before the Amtsgericht Offenbach am Main (hereinafter ‘the Court of First Instance Offenbach’) against the owner of one of the condominiums (hereinafter ‘the defendant’). The plaintiff sought an advance on the costs of repairing an electrical installation, arguing that it was a matter of common property. The case was referred to the WEG Abteilung (Condominium Division of the Court of First Instance).
In the statement of defence, the defendant challenged the jurisdiction of the chosen division of the Court of First Instance Offenbach, claiming that the matter did not fall under the WEG (2) and commented on the merits of the case. The defendant contested the plaintiff’s standing to bring the action, arguing that only the owners, and not the association, were entitled to bring the claim.
In a first order, the Court of First Instance Offenbach referred the case to its Civil Division. In a further order, the same court held that the case fell within the scope of commercial law and referred it to the Amtsgericht Frankfurt am Main (hereinafter ‘the Court of First Instance Frankfurt’) under Article 32 of the ZPO (3), since that was where the sale agreement had been concluded. The Court of First Instance Frankfurt declined jurisdiction and referred the case back to the Court of First Instance Offenbach.
As both courts of first instance declined jurisdiction, the question of jurisdiction had to be decided under Article 36 of the ZPO by the Court of Appeal.
The Court of Appeal found that the Court of First Instance Offenbach had correctly recognised the primacy of the European Union law over the question of jurisdiction and the applicability of the Brussels I Regulation (recast) (4), but that the Court of First Instance Offenbach had nevertheless based its further examination of jurisdiction on the provisions of the German ZPO, ignoring the European Union law.
According to the Court of Appeal, international jurisdiction must be determined on the basis of Article 26 of the Brussels I Regulation (recast), which provides that ‘a court of a Member State before which a defendant enters an appearance shall have jurisdiction’. In its defence, the defendant did not challenge the international or local jurisdiction of Offenbach, but only the specific division of the court, nor did it provide any information on its foreign domicile. The question of local jurisdiction was raised only by the Court of First Instance Offenbach.
The local jurisdiction is based on Article 24(1) of the Brussels I Regulation (recast), which provides that in proceedings which have as their object rights in rem in immovable property, the courts of the place where the property is situated shall have jurisdiction.
Consequently, the Court of Appeal held that the Court of First Instance Offenbach had jurisdiction.
(1) Wohnungseigentümergemeinschaft (WEG).
(2) Wohnungseigentumsgesetz (WEG) (Condominium Act).
(3) Zivilprozessordnung (Code of Civil Procedure).
(4) 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 (recast).