BGH; 2023-07-21; V ZR 112/22
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2023:210723UVZR112.22.0
Date: 2023-07-21
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82023DE0721(51)_ENG_SUMJURE
JURE summary
JURE summary
The case dealt with by the Bundesgerichtshof (hereinafter ‘the Supreme Court’) and concerned, amongst other things, the international jurisdiction of the German courts in a case when a party domiciled outside the EU entered an appearance. The trustees (hereinafter ‘the defendants’) of a Canadian trust administering the estate of a Jewish art dealer initiated through a Lost Art Database a search request for a painting which was sold in 1937 in Germany. The owner of the painting (hereinafter ‘the plaintiff’) demanded that the defendants be forbidden to claim their ownership of the painting and that the search request be deleted from the Lost Art Database. The Landgericht Magdeburg and the Oberlandesgericht Sachsen-Anhalt did not uphold the plaintiff’s argumentation. The plaintiff pursued his claims further by filing a revision with the Supreme Court. The revision was found admissible.
The Supreme Court, by virtue of the office, had to verify the international jurisdiction of the German courts and found that it followed from Article 26(1) of the Brussels I Regulation (recast) (1). The fact that the defendants were not domiciled in a Member State of the European Union was not decisive in this case. The defendants did not object to the jurisdiction. In its previous rulings, the Court of Justice of the European Union stated that in such cases, the domicile of the defendants is not relevant (Case C-412/98 (2)) and that entering an appearance is to be interpreted as an implied recognition of the jurisdiction of the court seised (Case C-175/15 (3)).
The applicability of German law followed from Article 4 of the Rome II Regulation (4) in connection with Article 1004(1) of the BGB (5). The Supreme Court ruled that the search request regarding the cultural asset placed in the Lost Art Database was based on true facts and, therefore, did not represent an impairment of property under Article 1004(1) of the BGB, and as such could not establish a claim of the current owner against the initiator of the request regarding the deletion request. In addition, the Supreme Court did not uphold the claim for the deletion of the search request in the Lost Art Database as demanded by an auxiliary claim.
The supreme Court dismissed the revision of the plaintiff against the decision of the Court of Appeal.
(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 (recast).
(2)  Judgment of the Court of Justice of 13 July 2000, Group Josi, C-412/98, ECLI:EU:C:2000:399, paragraph 44.
(3) Judgment of the Court of Justice of 17 March 2016, Taser International, C-175/15, ECLI:EU:C:2016:176, paragraph 21 and 33.
(4) 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).
(5) Bürgerliches Gesetzbuch (German Civil Code).