Oberlandesgericht Braunschweig ; 2019-05-22; Bank; Gesellschafter und Geschäftsführer sowie Bür-ge einer GmbH ; 11 U 18/19
Decision by national courts in the field of European Union law — ECLI:DE:OLGBS:2019:0522.11U18.19.00
Date: 2019-05-22
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82019DE0522(52)_ENG_SUMJURE
JURE summary
JURE summary
The case dealt with by the Oberlandesgericht Braunschweig (hereinafter ‘the Court of Appeal’) concerned the European jurisdiction and the place of jurisdiction when claims were made against a surety.
The defendant was a member and the director of the M. M. S. B. GmbH (hereinafter ‘the company’). In order to provide security for the loans given by the plaintiff to the company, the defendant, as a sole surety, provided two sureties in 2010 and 2012 totalling to the amount of EUR 900,000.
With a letter from 10 January 2013, the plaintiff requested that the defendant as surety pay EUR 900,000. On 24 September 2015, the plaintiff field an application with the Amtsgericht Braunschweig seeking insolvency proceedings regarding the defendant to be opened. The Amtsgericht Braunschweig decided in favour of the application and opened the insolvency proceedings. After the Amtsgericht Braunschweig determined the value of the dispute to be up to EUR 100,000, it found itself to be lacking jurisdiction and referred the case to the Landgericht Braunschweig (hereinafter ‘the Court of First Instance’).
The Court of First Instance dismissed the action with an interim judgment from 21 November 2018 as inadmissible, citing that it held the subject-matter, but not the international and local jurisdiction. The plaintiff applied to annul the interim judgment. The defendant contested the international and the local jurisdiction of the Court of First Instance and claimed that its residency was not in B. but in C.
The Court of Appeal, however, found that the Court of First Instance had both international and local jurisdiction. The international jurisdiction of the German courts and the local jurisdiction of the Court of First Instance was given even if the defendant lived in C. Making claims against a surety was possible under Article 7(1)(a) of the Brussels I Regulation (recast) (1).
According to the provision of this Article, a person domiciled in a Member State might be sued in another Member State in matters relating to a contract in the courts for the place of performance of the obligation in question. The place of performance regarding an obligation of a surety was the place of his residency upon the creation of the suretyship and the place of jurisdiction established in this way was not subject to any change after a subsequent relocation.
The Court of Appeal annulled the decision of the Court of First Instance and referred the case back for a new hearing and decision to the Court of First Instance.
(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.