Bundesgerichtshof; 2016-09-13; VI ZB 21/15
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2016:130916BVIZB21.15.0
Date: 2016-09-13
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82016DE0913(51)_ENG_SUMJURE
JURE summary
JURE summary
A holding company domiciled in Germany (hereinafter ‘the plaintiff’) filed an action for declaratory relief claiming that damages resulting from letters dated 10 and 28 February 2012 cannot be satisfied. The letters had been sent by an investment company domiciled in the Cayman Islands (hereinafter ‘the defendant 1’) and a business partnership domiciled in London (hereinafter ‘the defendant 2’) (together as ‘the defendants’). The defendants, based on incorrect information provided by Porsche, had suffered a loss of USD 194.9 million resulting from transactions closing their short positions.
On 2 July 2012, the Landgericht Stuttgart (hereinafter ‘the Court of First Instance in Stuttgart’) ordered written preliminary proceedings. The attempt to serve the application to defendant 1 on 21 August 2012 failed. The application against defendant 2 was served properly. The application had been delivered to the English lawyers of defendant 1; however, the lawyers claimed that they were not authorised to receive such a delivery. On 13 November 2012, the Court of First Instance in Stuttgart informed the plaintiff that it had not specified the lawyers representing defendant 1.
On 18 June 2012, defendant 1 brought an action before the High Court of Justice in London (hereinafter ‘Court of First Instance in London’) against the plaintiff, for payment of the alleged damages. The action was delivered to the plaintiff on 26 November 2012.
The disputable issue in this case is which court is ‘the court first seised’ by virtue of Article 27(1) of the Brussels I Regulation (1) and which court shall stay its proceedings. The Court of First Instance in Stuttgart rejected the application of defendant 1 for a stay of proceedings.
The appeal of defendant 1 to the Oberlandesgericht Stuttgart (hereinafter ‘the Court of Appeal’) was not satisfied.
Subsequently, the defendants filed an appeal on a point of law to the Bundesgerichtshof (hereinafter ‘the Supreme Court’), seeking a correction of the decision of the Court of Appeal.
The appeal on a point of law contested the assessment of the Court of First Instance in Stuttgart, deeming itself the court to be seised, pursuant to Article 30(1) of the Brussels I Regulation. The decisive fact was whether the plaintiff, besides the obligation to provide the documents instituting the proceedings in due time, had not failed to take all measures incumbent upon it to allow the service of the documents to the defendants, based on lex fori.
The plaintiff should be accused of negligence because it had failed to notify the Court of First Instance in Stuttgart of the correct and complete service address (2) of defendant 1 until 14 January 2013. According to German law, the plaintiff must provide all required information in the application (at the time of filing the action) and cannot do so subsequently directly to the court.
The plaintiff had no obligation to request an official excerpt from the Commercial Register or any other public document. It was sufficient to have the information concerning the address of defendant 1 from a reliable source, which was not the case here (the website of the General Registry of the Cayman Islands).
Furthermore, the lawyers representing defendant 1 were not authorised to be served the application in the present proceedings. Although the Court of Appeal had correctly applied English law (the state in which the lawyers operate) (3) in its consideration, it did not reach the correct conclusion due to legal errors. The Court of Appeal was confined to obtain a general opinion from the contact persons of the British Ministry of Justice and to draw on two judgments of the courts of the United Kingdom. However, there was no expert opinion given from a specialist familiar with English law.
The Supreme Court annulled the decision of the Court of Appeal that had been previously appealed by defendant 1 and referred the case back to the Court of Appeal for a new 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) Judgments VI ZR 198/99, XI ZR 230/08 and IX ZR 92/74.
(3) Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 does not deal with this issue.