OLG Karlsruhe; 2017-05-31; 13 U 130/16
Decision by national courts in the field of European Union law — ECLI:DE:OLGKARL:2017:0531.13U130.16.0A
Date: 2017-05-31
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82017DE0531(51)_ENG_SUMJURE
JURE summary
JURE summary
A producer of PVC products (hereinafter ‘the plaintiff’) filed an action firstly against two companies trading PCV products (hereinafter ‘defendant 1’ and ‘defendant 2’) seeking the payment of financial claims resulting from the respective cooperation and delivery relationship.
After defendant 1 and defendant 2 paid the principal claim without interest, the plaintiff declared the dispute as settled.
Subsequently, a private person domiciled in the Switzerland (hereinafter ‘the defendant 3’) who was the sole board member of defendant 1 and managing director of defendant 1 and defendant 2, provided an out-of-court unlimited sole suretyship relating to any financial claims against defendant 1, be it before or after the due date.
With respect to other financial claims outside of the cooperation and delivery relationship with defendant 1, the plaintiff made claims against this new defendant 3 as the surety. After defendant 1 and defendant 2 applied for the insolvency, the plaintiff applied for the pending dispute against defendant 3 to be continued.
The Landgericht Freiburg (hereinafter ‘the Court of First Instance’) found in its interim judgment that the action was admissible and that it had the international jurisdiction under Article 6(1) of the new Lugano Convention (1).
Defendant 3 filed an appeal with the Oberlandesgericht Karlsruhe (hereinafter ‘the Court of Appeal’) against this decision claiming that the Court of First Instance was lacking international jurisdiction.
The admissible appeal was not justified and was not successful.
The Court of First Instance correctly stated that the international jurisdiction of the German courts with respect to defendant 3 was given under Article 1(1), Article 3(1) and Article 6(1) of the new Lugano Convention.
The general principle of jurisdiction according to the place of residence may be deviated from only in the cases listed exhaustively (2) in the new Lugano Convention. This was the case in this dispute.
There is such a close connection between the actions against defendant 1 and defendant 2 and against defendant 3 that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. It is not expressly necessary for the actions filed against different defendants to have the same legal bases. In this case, the respective debt and the accessory suretyship were closely connected.
The occurrence of the insolvency of defendant 1 and defendant 2 in the meantime is not important as the moment of filing the action is decisive for the assessment of the preconditions under Article 6(1) of the new the Lugano Convention. The Court of Appeal dismissed the appeal of defendant 3 against the ruling of the Court of First Instance.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Judgment of the Court of Justice of 11 October 2007, Freeport plc v Olle Arnoldsson, C-98/06, ECLI:EU:C:2007:595.