Oberlandesgericht Köln; 2019-11-06; Bürge; 13 U 226/17
Decision by national courts in the field of European Union law — ECLI:DE:OLGK:2019:1106.13U226.17.00
Date: 2019-11-06
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82019DE1106(51)_ENG_SUMJURE
JURE summary
JURE summary
A credit company domiciled in Germany (hereinafter ‘the plaintiff’) filed an action against two defendants domiciled in the United Kingdom (hereinafter ‘the defendants’) seeking the payment of a surety.
After the principal debtor, to whom the plaintiff granted a loan for a construction project, declared insolvency, the plaintiff requested that the defendants pay the outstanding amount of EUR 150,000, citing that the international jurisdiction of the German courts followed from the surety agreements concluded with the defendants.
The Landgericht Köln (hereinafter ‘the Court of First Instance’) upheld the action and stated that it held international jurisdiction due to the fact that the general place of jurisdiction of the defendants was not applicable in Germany and the plaintiff could therefore pursue its claims at its general place of jurisdiction.
The defendants lodged an appeal with the Oberlandesgericht Köln (hereinafter ‘the Court of Appeal’) against the decision of the Court of First Instance claiming that the German courts did not hold international jurisdiction. The applicable legal provision was Article 17 et seq. of the Brussels I Regulation (recast)(1) which also applied to agreements which had not been concluded within distance selling. In addition, the action had not been served properly to the defendants. With respect to the first defendant, it was necessary to serve the action in person, as required for service of documents from abroad in the United Kingdom. The action was merely left with his wife. The service of the action to the second defendant had not been conducted in a sufficient manner either, as the action was only left in his post box in the United Kingdom. These defects of the service had not been healed under Article 189 ZPO (2). The first defendant had granted the power of attorney only after the action had been served to his representatives for the proceedings.
The appeal of the defendant was not successful.
The jurisdiction of the Court of First Instance had been agreed in writing in Article 9 of the surety agreement.
In addition, preconditions existed for the insufficiencies of the service to be rectified under Article 189 ZPO. The lawyer, who became participant to the proceedings for the defendants only by a subsequent authorisation, had the document served at his disposal already prior to the authorisation (3). He was named as a person authorised to be served the document in the petition. In such a case, the service had the same effect as a service to the client.
The Court of Appeal dismissed the appeal of the defendants against the decision of the Court of First Instance.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Zivilprozessordnung (Code of Civil Procedure).
(3) Judgments of the Bundesgerichtshof Nr. VI ZR 48/10 of 7 December 2010 and VI ZR 226/87 of 22 November 1988.