BGH; 2018-02-22; IX ZR 83/17
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2018:220218UIXZR83.17.0
Date: 2018-02-22
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82018DE0222(51)_ENG_SUMJURE
JURE summary
JURE summary
The dispute resolved by the Bundesgerichtshof (hereinafter ‘the Supreme Court’) concerned the inadmissibility of an action brought in a German court where the same action had been pending in a court with international jurisdiction in a different Member State of the European Union, and further the stay of the proceedings and a decision regarding the principal issue.
The plaintiff is an attorney with an establishment in Salzburg, Austria. In 2013, he represented a defendant living in Germany in a civil case dealt with by the Bezirksgericht Hallein (The District Court of Hallein) in Austria.
The plaintiff made a claim against the defendant, his client, in an Austrian court, seeking the payment of remuneration for representation. By its resolution of 20 August 2015, the Landesgericht Salzburg established the international jurisdiction of the Bezirksgericht Salzburg and referred the rest of the case to the Bezirksgericht, in front of which the parties concluded on 6 October 2015 a settlement in the amount of the claim.
In March 2015, the plaintiff also made a claim against the defendant by the Amtsgericht Groß-Gerau (hereinafter ‘the Court of First Instance’) in Germany. The Court of First Instance stayed the proceedings with its resolution of 30 July 2015 until such time as the Austrian courts have decided on the jurisdiction. After the completion of the proceedings in Austria, the plaintiff declared the dispute in relation to the Court of First Instance as terminated. The plaintiff did not join this declaration of the termination.
The Court of First Instance dismissed the modified action now seeking the determination of whether the proceedings had been terminated or not. After the appeal of the plaintiff, the Landgericht (hereinafter ‘the Court of Appeal’) convicted the defendant according to the petition. The defendant filed a justified revision seeking the decision of the Court of First Instance to be restored.
In Article 29(1) and (3) of the Brussels I Regulation (recast) (1) it is stipulated that ‘where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.’ The mode, in which the proceedings of the later seised court are to be terminated and who shall bear the costs of such proceedings is subject of national law.
According to the Supreme Court, the Court of Appeal had made a wrong decision in declaring the principal issue to be terminated. The later action was inadmissible from the beginning due to the pendency in a different court. For this reason, the plaintiff was not entitled to pass the costs on to the defendant through the declaration of termination.
The plaintiff’s appeal against the decision of the Court of First Instance was dismissed. Based on the revision filed by the defendant, the decision of the Court of Appeal was cancelled and the Supreme Court itself will decide in the matter.
(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.