Saarländisches Oberlandesgericht Saarbrücken; 2020-02-06; 4 U 33/18
Decision by national courts in the field of European Union law — ECLI:DE:OLGSL:2020:0206.4U33.18.00
Date: 2020-02-06
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82020DE0206(53)_ENG_SUMJURE
JURE summary
JURE summary
The case concerned a traffic accident in Luxembourg between two persons domiciled in Germany, the plaintiff (hereinafter ‘the plaintiff’) and another party, whose car was insured with the defendant (hereinafter ‘the defendant’).
The plaintiff asserted its claim for compensation by sending a letter to the defendant. However, the defendant paid only a part of the requested amount. The plaintiff therefore filed an action with the Landgericht Saarbrücken (hereinafter ‘the Court of First Instance’) demanding that the court order the defendant to pay the whole requested sum.
The Court of First Instance acknowledged 50 % of the asserted costs to the plaintiff, stating that the court could not ascertain who had caused the accident and the costs were, therefore, to be divided equally between the parties. The Court of First Instance assumed that the applicable law was the law of Luxembourg under Article 4(1) of the Rome II Regulation (1).
The plaintiff pursued its claim further by lodging an appeal demanding the payment of the other half of the acknowledged amount of the damage and applied for the decision to be changed, or alternatively for the case to be referred back to the Court of First Instance. The defendant, on the contrary, applied for the appeal to be dismissed, or alternatively for the case to be referred back to the Court of First Instance.
Contrary to the opinion of the Court of First Instance, the Saarländisches Oberlandesgericht Saarbrücken (hereinafter ‘the Court of Appeal’) found that the law of Luxembourg was only relevant to the question of the breach of Luxembourgish traffic rules, whereas the liability principles and the compensation for concrete damage were governed by German civil law. Under the provision of Article 4(2) of the Rome II Regulation concerning the habitual residence of the persons involved, the applicable law was the German indemnity law in connection with the general principles of the ZPO (2). The aspects of the cause and fault regarding the accident, which were to be considered for assessing the liability as required by Article 17(2) of the StVG (3), were to be considered, pursuant to Article 17 of the Rome II Regulation, according to the road traffic rules applicable to the place of the accident.
Having regard to the significance of the law of Luxembourg for resolving important parts of the dispute, the Court of Appeal found that the assessment and determination required under Article 293(2) of the ZPO were omitted. This omission represented a significant procedural defect under Article 538(2)(1)(1) of the ZPO, which required a comprehensive gathering of evidence. The proceedings with the Court of First Instance suffered from a substantial procedural defect due to the fact that the Court of First Instance had not commissioned any expert opinion regarding Luxembourgish traffic law.
Based on the ascertained procedural defect, the Court of Appeal annulled the decision of the Court of First Instance and referred the case back to the Court of First Instance for a new hearing and decision.
(1) Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II).
(2) Zivilprozessordnung (Code of Civil Procedure).
(3) Straßenverkehrsgesetz (Road Traffic Act).