OLG München; 2014-02-19; 15 W 912/13
Decision by national courts in the field of European Union law — ECLI:DE:OLGMUEN:2014:0219.15W912.13.0A
Date: 2014-02-19
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82014DE0219(51)_ENG_SUMJURE
JURE summary
JURE summary
A company established in Germany (hereinafter ‘the plaintiff’) applied to the Landgericht Munich I (hereinafter ‘the Court of First Instance’) for an independent procedure of taking evidence of defects in equipment, being two vacuum dryers and a batch mixer, manufactured under contract by a manufacturer (hereinafter ‘the defendant’). The equipment was supplied to the plaintiff’s customer, a public limited company in France (hereinafter ‘the customer’), which was setting up a decontamination plant at a site in France.
The Court of First Instance rejected the plaintiff’s application. According to Article 27(2) of the Brussels I Regulation (1), it does not have jurisdiction as the court second seised. The customer asserted the defects before the Commercial Court of Salon de Provence in France and obtained an injunction against the plaintiff ordering an expert to inspect the plant. Even before the German proceedings were initiated, the French court, at the request of the plaintiff, ordered the extension of the assessment against the defendant.
The plaintiff lodged an immediate appeal against the order of the Court of First Instance with the Oberlandesgericht Munich (‘the Court of Appeal’). However, the complaint is unfounded.
It is true that, contrary to the view of the Court of First Instance, the result of the French procedure for the taking of evidence could not be recognised in Germany under Article 32 of the Brussels I Regulation. A foreign procedure for the taking of evidence cannot lead to a court decision, but it must be examined whether the result of the taking of evidence can be made subject to a free assessment of evidence during the main proceedings.
The applicability of Article 27 of the Brussels I Regulation is not precluded by the fact that the proceedings for securing evidence in France and Germany were not pending between the same parties. The inclusion of the defendant in the evidence proceedings originally brought against the plaintiff has the same legal effects as if the plaintiff had himself brought evidence proceedings against the defendant before the French court.
Contrary to what the plaintiff claims, the procedure for the taking of evidence in France also has the effect of suspending the limitation period for its warranty claims against the defendant. The French procedure of taking evidence can also serve to prepare for main proceedings to be initiated in Germany.
The Court of Appeal dismissed the plaintiff’s appeal against the judgment of the Court of First Instance.
(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.