KG Berlin; 2018-05-15; 7 U 112/17
Decision by national courts in the field of European Union law — ECLI:DE:KG:2018:0515.7U112.17.00
Date: 2018-05-15
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82018DE0515(52)_ENG_SUMJURE
JURE summary
JURE summary
A limited liability company under Polish law (hereinafter ‘the defendant’) entered into negotiations via electronic means with a German investor (hereinafter ‘the plaintiff’) in order to provide financial advice on a project in exchange for remuneration. The plaintiff paid a sum of money to the defendant at the beginning of their cooperation.
The investment project failed, and the plaintiff brought an action against the defendant requesting the return of the sum paid and to pay further costs. The plaintiff obtained a default judgment which was confirmed by the Landgericht Berlin (hereinafter ‘the Court of Appeal’). The defendant appealed to the Kammergericht Berlin (hereinafter ‘the Supreme Court’).
The defendant submits, inter alia, that the two previous judgments infringed formal and substantive law by ordering it to return the said sum and by failing to recognise the jurisdiction of the Polish courts as agreed between the parties prior to the contract. Indeed, Polish law does not recognise any difference between the obligation of means and the obligation of result. Consequently, the sum paid cannot be repaid simply because the investment project has failed.
The plaintiff questioned the validity of the contract because the parties did not agree on its essential elements, so that it could not be legally formed, and the sum paid is therefore unjust enrichment.
Hence, it appears that the solution to the dispute depends on the applicable law, making the question of the jurisdiction of the German courts, which is disputed by the defendant, central. The Supreme Court had to decide whether the nullity of the main contract affected the choice of court clause.
The Supreme Court held that Article 25(5) of the Brussels I Regulation (recast) (1) provides legal certainty with regard to the forum selection clause by making it a contract separate from the main contract, so that the validity of the forum selection clause cannot be called into question solely on the ground that the main contract of which it forms part is invalid. This provision is intended to achieve the objective that a dispute between the parties concerning the validity of a contract on the merits must also be brought before the court whose jurisdiction the parties have designated for the dispute.
The Supreme Court held that the parties had reached an agreement on the jurisdiction of the Polish courts in their contractual negotiations, in addition to having implemented at least some of their other intentions, such as, for example, the payment of the deposit and the participation of the defendant in the discussions serving the subject matter of the contract.
(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.