Vidzemes apgabaltiesa; 2021-03-26; C29375518
Decision by national courts in the field of European Union law — ECLI:LV:VAT:2021:0326.C29375518.20.L
Date: 2021-03-26
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Latvia

82021LV0326(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, decided by the Vidzemes apgabaltiesa (hereinafter ‘the Court of Appeal’), concerns the right to bring an action where several creditors hold the claim.
A plaintiff brought an action against a defendant to recover a debt arising from two loan agreements. The plaintiff had acquired a right of action against the defendant under Swiss law. The loans were made to the defendant by the Swiss company, which was liquidated, and all its assets and liabilities were transferred to the plaintiff.
The defendant contested the claim, arguing that the plaintiff lacked standing to bring the action because, following the liquidation of the Swiss company, the rights had been assigned to several creditors. They should pursue the claim jointly.
The Vidzemes rajona tiesa (hereinafter ‘the Court of First Instance’) partially upheld the claim. The court referred to Article 2(1) and Article 60(1) of the new Lugano Convention (1), which allow a foreign creditor to sue a debtor domiciled in Latvia before a Latvian court. The Court of First Instance found that the existence of the loan agreements was undisputed, that the period for performance of the obligation to repay the loan had expired and that the obligation should have been performed in Latvia. The Court of First Instance held that there was no reason to assume that all creditors to whom a claim had been assigned had to bring the claim together.
The defendant appealed to the Court of Appeal, challenging the plaintiff's right to sue on the basis that the claim had been assigned to eight creditors ‘in a similar manner’, but the Court of Appeal partially upheld the first instance decision.
Following the defendant's cassation appeal, the Latvijas Republikas Augstākā tiesa (hereinafter ‘the Supreme Court’) overturned the Court of Appeal's decision and remitted the case. Since the plaintiff represents a group of creditors who have not waived their right to pursue recovery, it is essential to clarify the content of Article 260F of the SchKG (2), which grants creditors this right, which the Court of Appeal failed to assess thoroughly.
In a new case, the Court of Appeal followed the binding instructions of the Supreme Court and examined Article 260F of the SchKG. The Court of Appeal referred to Swiss case law according to which a creditor pursuing a claim that other creditors share must prove to the court that the other creditors, who are assignees, have waived the assignment. In the present case, the plaintiff has not provided any evidence that the other creditors have refused to maintain the claim. The fact that the other creditors did not file a lawsuit or did not take any action against the defendant is insufficient to justify the plaintiff's lawsuit. In such a situation, the court has no reason to consider the merits of the case.
The Court of Appeal granted the defendant's appeal, held that the plaintiff had no right to bring the case and dismissed the action.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Bundesgesetz über Schuldbetreibung und Konkurs (Swiss Federal Law on Debt Enforcement and Bankruptcy).