BGH; 2024-10-24; VII ZR 199/22
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2024:241024BVIIZR199.22.0
Date: 2024-10-24
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82024DE1024(51)_ENG_SUMJURE
JURE summary
JURE summary
A GmbH-type company domiciled in Germany (hereinafter ‘the plaintiff’) filed a claim against a public limited company domiciled in Spain (hereinafter ‘the defendant’), seeking the issuance of a declaration that the defendant was obliged to compensate it for all additional costs and damages arising from a transaction.
The plaintiff was commissioned by a Spanish company with the turnkey construction of a waste treatment plant. The plaintiff concluded a contract with the defendant in which the defendant undertook to install two incineration chambers for a waste treatment plant in San Sebastián, Spain, in return for consideration. Cologne was agreed as the place of jurisdiction. In addition, the defendant provided a bank guarantee in favour of the plaintiff on first demand in the amount of 10% of the agreed remuneration. There were delays on the part of the defendant during the implementation. Subsequently, the plaintiff demanded reimbursement of additional costs, which the defendant refused. As a result, the plaintiff took use of the bank guarantee and the bank paid the plaintiff the requested amount. In response, the defendant filed a lawsuit against the plaintiff with the Juzgado de Primera Instancia de Madrid on 30 July 2019 demanding compensation and repayment of the amount paid out by the bank.
The action brought by the plaintiff 8 days later was dismissed as inadmissible by the Landgericht Köln (hereinafter ‘the Court of First Instance’).
The court in Madrid declared that it did not have jurisdiction and referred the case to the court in San Sebastián. It argued that the choice of court agreement in the bank guarantee was not relevant to the legal dispute. The court in San Sebastián confirmed the jurisdiction of Spanish courts.
On 11 May 2021, the Court of First Instance again dismissed the plaintiff’s claim as inadmissible. It acknowledged that the courts in Cologne had jurisdiction in accordance with the agreed choice of court provision. However, the Spanish courts’ determination of their own international jurisdiction pursuant to Article 36(1) of the Brussels I Regulation (recast) (1) had to be recognised. The Spanish courts had not stayed the proceedings, although they should have done so under Article 31(2) of the Brussels I Regulation (recast). Since Spanish jurisdiction had to be recognised, the German courts lacked international jurisdiction.
The plaintiff appealed against this judgment to the Oberlandesgericht Köln (hereinafter ‘the Court of Appeal’). The Court of Appeal set aside the judgment of the Court of First Instance and held, by way of an interim judgment, that the German courts had international jurisdiction. The case was referred back to the Court of First Instance for further proceedings.
The defendant filed a revision against this decision with the Bundesgerichtshof (hereinafter ‘the Supreme Court’) and requested that the plaintiff’s appeal be dismissed.
The Supreme Court stayed the proceedings and referred the following questions to the Court of Justice of the European Union for interpretation:
Is the concept of judgment in Article 36(1) of the Brussels I Regulation (recast) to be interpreted as meaning that the court having exclusive jurisdiction under an agreement pursuant to Article 25 of the Brussels I Regulation (recast) (Article 31(2) of the Brussels I Regulation (recast)) must recognise a judgment by which a court of a Member State which had not been agreed upon by the parties established the international jurisdiction of the courts of that Member State if it is not a final judgment within the respective instance (interim judgment)?
If question 1 is answered in the affirmative in principle: Does it additionally depend on the recognition of the interim judgment whether the interim judgment affirming the separate international jurisdiction of the courts of the Member State binds the non-agreed court itself and/or whether the affirmation of international jurisdiction can be changed based on an appeal?
(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.