KG Berlin; 2024-10-14; 2 UH 31/24
Decision by national courts in the field of European Union law — ECLI:DE:KG:2024:1014.2UH31.24.00
Date: 2024-10-14
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82024DE1014(51)_ENG_SUMJURE
JURE summary
JURE summary
This case concerns the relationship between a jurisdiction clause and jurisdiction based on a party’s appearance in proceedings resolved by the Kammergericht Berlin (hereinafter ‘the Court of Appeal’).
A company domiciled in Germany (hereinafter ‘the plaintiff’) sought the payment of remuneration agreed under a Service Provision Agreement (SPA) from a company domiciled in Switzerland (hereinafter ‘the defendant’) before the Landgericht Berlin (hereinafter ‘the Court of First Instance in Berlin’). Initially, the plaintiff entered into a Business Agreement (BA) with the defendant’s parent company for the development of software. Subsequently, the plaintiff concluded an SPA with the defendant, whereby the plaintiff undertook to provide, further develop, maintain and license the software. Both the SPA and the BA contained a jurisdiction clause in favour of the ‘competent court in Rottweil, Germany’.
In its statement of defence, the defendant did not address the jurisdiction. However, the Court of First Instance in Berlin expressed concerns about its local jurisdiction due to the existence of the jurisdiction clause in favour of the court in Rottweil, an opinion with which the defendant later agreed. The court declared a lack of jurisdiction to hear the case and referred it to the Landgericht Rottweil (hereinafter ‘the Court of First Instance in Rottweil’).
However, the Court of First Instance in Rottweil also declared that it had no local jurisdiction to hear the case, referring it back to the Court of First Instance in Berlin. Consequently, the Court of First Instance in Berlin requested that the Court of Appeal determine the jurisdiction pursuant to Section 36 of the ZPO (1).
The Court of Appeal invoked Article 24 of the new Lugano Convention (2), according to which ‘a court of a State bound by this Convention before which a defendant enters an appearance shall have jurisdiction. This rule shall not apply where an appearance was entered to contest the jurisdiction’.
The Court of Appeal held that the jurisdictional dispute regarding whether the Court of First Instance in Berlin can validly establish jurisdiction in the case of the existence of a contractual jurisdiction clause contained in both the SPA and the BA was no longer decisive. The defendant entered an appearance in the proceedings without objecting to the jurisdiction, at the latest when providing its statement of defence. An appearance without objection establishes both international and local jurisdiction of the court seised. The Court of First Instance in Berlin did not lose its jurisdiction based on referral to the Court of First Instance in Rottweil either. The referral order appears to be objectively arbitrary and has no binding effect if the reasoning behind it or the contents of the file do not make it clear which court has jurisdiction.
Therefore, the Court of First Instance in Berlin has both international and local jurisdiction to hear the case.
(1) Zivilprozessordnung (Code of Civil Procedure).
(2) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.