LG Freiburg; 2016-10-17; 12 O 70/14
Decision by national courts in the field of European Union law — ECLI:DE:LGFREIB:2016:1017.12O70.14.00
Date: 2016-10-17
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82016DE1017(51)_ENG_SUMJURE
JURE summary
JURE summary
The legal case resolved by the Landgericht Freiburg (hereinafter ‘the Court of First Instance’) concerned the international jurisdiction of a German court in relation to an action against principal debtors domiciled in Germany and their surety domiciled in Switzerland (hereinafter ‘the defendant’) during the interruption of proceedings due to the insolvency of the principal debtors. The plaintiff filed the relevant action seeking the payment of outstanding purchase prices initially against two German companies but later extended the action to include one more defendant on the basis of its liability as a sole surety. After the extension of the action, insolvency proceedings against the two German companies had been initiated, and the plaintiff pursued the legal dispute against the defendant. The defendant considered the action to be inadmissible because its domicile was in Switzerland and it had no branch office in Germany. The Court of First Instance decided that separate proceedings were admissible.
The Court of First Instance believed that the action was admissible under Article 6(1) of the new Lugano Convention (1). This provision stipulates that where the defendant is one of a number of defendants, the defendant may be sued in the courts of the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. Such a relationship exists between the actions against the principal debtor and the surety. To the same effect shall also be interpreted Article 6(1) of the Brussels I Regulation (2). The Court of First Instance drew upon legal Cases nos. C-645/11 (3) and C-352/13 (4) stating that identical legal basis for action against different defendants were only one of several relevant factors and that the applicability of different legal systems itself presented no obstacle to the local jurisdiction based on the factual context.
The Court of First Instance rejected the doubts expressed by the defendant stating that the principle of retaining established jurisdiction also applied to this case. The Court of First Instance further examined the possibility of abuse of the principle of perpetuatio fori that would be given if a defendant had artificially created or maintained the preconditions for the application of this principle. According to the course of proceedings, such an abuse could be excluded from the case.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(3) Judgment of the Court of Justice of 11 April 2013, Land Berlin v Ellen Mirjam Sapir and Others., C-645/11, ECLI:EU:C:2013:228, paragraph 44.
(4)  Judgment of the Court of Justice of 21 May 2015, Cartel Damage Claims (CDC) Hydrogen Peroxide SA v Evonik Degussa GmbH and Others, C-352/13, ECLI:EU:C:2015:335.