AG Stuttgart; 2016-08-08; 28 F 618/16
Decision by national courts in the field of European Union law — ECLI:DE:AGSTUTT:2016:0808.28F618.16.0A
Date: 2016-08-08
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82016DE0808(51)_ENG_SUMJURE
JURE summary
JURE summary
The subject-matter of the preliminary question filed with the Court of Justice of the European Union  in accordance with Article 267(2) TEU (2) was to clarify whether an arbitration authority under the laws of Switzerland is to be considered a court within the meaning of the new Lugano Convention (1). The case was dealt with by the Amtsgericht Stuttgart (hereinafter ‘the Court of First Instance’).
The subject-matter of the proceedings pending in Germany with the Court of First Instance was the application of the plaintiff domiciled in Switzerland against Landratsamt SH (District Office Schwäbisch Hall) (hereinafter ‘the defendant’) seeking a negative declaratory judgment stipulating that the plaintiff was not obliged to pay maintenance on the basis of a right that had passed to the plaintiff. On 16 October 2015, the plaintiff filed an arbitration application with – under the Swiss law relevant – the arbitration authority of Friedensrichteramt (Arbitrator’s Office).
As the parties to that proceeding could not reach an agreement, the Friedensrichteramt (Arbitrator’s Office) gave on 25 January 2016 its consent under Swiss law to an action. This consent was served to the legal representative of the defendant who had the position of the plaintiff in those proceedings. On 11 May 2016, an action was filed with the Kantonsgericht Schaffhausen (Cantonal Court Schaffhausen), having jurisdiction under Swiss law, against the plaintiff (the defendant in those proceedings) seeking the that the plaintiff (the defendant in those proceedings) pays a minimum maintenance amount and provides additional information. The plaintiff had filed an application with the Court of First Instance seeking a negative declaratory judgment previously on 22 February 2016.
The defendant claimed that the application was to be dismissed citing that the Court of First Instance was prevented from considering the case due to the pendency of the dispute in Switzerland and that the German court was therefore supposed to stay the proceedings in accordance with Article 27(1) of the new Lugano Convention. The defendant did not agree with this opinion stating that the above arbitration authority did not represent a ‘court’ within the meaning of the new Lugano Convention.
Article 64(2)(a) of the new Lugano Convention stipulates that the new Lugano Convention also applies to Member States of the European Union in matters of jurisdiction, where the defendant is domiciled in the territory of a State where this Convention but not an instrument referred to in Article 64(1) of the new Lugano Convention applies. Switzerland has been a Member State of the new Lugano Convention since 1 January 2011.
If the arbitration authority seised did not represent a court, the court first seised would be the Court of First Instance, with the consequence that the Kantonsgericht Schaffhausen (Cantonal Court Schaffhausen), seised in May 2016, would have to decline jurisdiction for reason of being the second court seised.
The Court of First Instance decided to stay the proceedings and the approach the Court of Justice of the European Union in accordance with Article 267(2) TEU seeking clarification of whether an arbitration authority under the laws of Switzerland is to be considered a court within the meaning of Article 27 and Article 30 of the new Lugano Convention.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Treaty on the Functioning of the European Union.