Bundesgerichtshof; 2016-01-21; I ZR 90/14
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2016:210116UIZR90.14.0
Date: 2016-01-21
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82016DE0121(51)_ENG_SUMJURE
JURE summary
JURE summary
A company of the Bayer group (hereinafter ‘the plaintiff’) filed an action against a company domiciled in the Netherlands (hereinafter ‘the defendant’) seeking the payment of compensation.
The plaintiff is the owner of the registration of the pesticide with the name ‘Decis flüssig’, an insecticide which contains the active substance deltamethrin. In 2006, no other pesticide with this active substance was registered in Germany. The defendant unlawfully imported pesticides with an identical chemical composition to the German market.
The Landgericht Nürnberg-Fürth (hereinafter ‘the Court of First Instance’) ordered the defendant to pay EUR 28_895.11 including interest.
The appeal of the defendant against this decision filed with the Oberlandesgericht Nürnberg (hereinafter ‘the Court of Appeal’) was not successful.
The defendant pursued its application for the dismissal of the action further by filing an admissible revision with the Bundesgerichtshof (hereinafter ‘the Supreme Court’).
The revision of the plaintiff was successful.
The international jurisdiction of the German court followed from Article 5(3) of the Brussels I Regulation (1).
The judgment of the Court of Appeal was to be signed by all participating judges underArticle 315 ZPO (2). This was not the case in this dispute. The change of one of the judges of the senate to a different judgment-issuing body of the same Court of Appeal did not present a real obstacle for the signature and could not be substituted. The respective signature had not been added within a five months period. For that reason, the judgment of the Court of Appeal was to be considered not complete and annulled within the revision proceedings.
The Court of Appeal was correct to conclude that the plaintiff was having the burden of proof with respect to the determination of the concrete amount of the loss. However, the Court of Appeal made some legal mistakes (Article 287(1) ZPO) when determining the amount of the compensation because it had not taken into account any evidence regarding the market circumstances as presented by the plaintiff and as opposed to by the defendant and had not made any final statements in this regard.
The Supreme Court annulled the judgment of the Court of Appeal and referred the case back to the Court of Appeal for a new hearing and decision.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Zivilprozessordnung (Code of Civil Procedure).