Arbitrary referral in the event of non-compliance with international rules of jurisdiction!


The Bavarian Supreme Court recently had to deal with the following case: The claimant, who lives in Passau, filed a legal action in Passau to claim damages from the defendants as joint and several debtors for a traffic accident that occurred in Slovenia on September 27, 2023. The motorhome driven by defendant 2) is covered by liability insurance with defendant 1). Defendant 1) is a public limited company under Swiss law with its registered office in St. Gallen, Switzerland and a branch office entered in Commercial Register B of the Local Court of Frankfurt am Main. Defendant 2) is resident in Stuttgart.

The defendants objected to the lack of territorial jurisdiction of the court seised, which, for its part, had issued an order for written preliminary proceedings stating that it did not have territorial jurisdiction for the legal action under the provisions of the Code of Civil Procedure and Regulation (EU) No. 1215/2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Ia Regulation).

In the proceedings on the question of local jurisdiction, the parties were informed that, with regard to the defendant 1), the Passau Regional Court had international and local jurisdiction under the relevant Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters of October 30, 2007 (Lugano Convention).The Regional Court of Passau has international and local jurisdiction, there is no common domestic place of jurisdiction for the legal dispute and the court's discretion in determining the place of jurisdiction is limited because the priority of application of the Lugano Convention must also be observed in the determination procedure. The parties have been given the opportunity to submit facts that may be relevant for the legal classification of the "Directorate for Germany" of defendant 1) as a branch office in accordance with the autonomous legal understanding of the Lugano Convention and for the question of whether a dispute arises from the operation of this branch office.

The Bavarian Higher Regional Court has jurisdiction for the determination proceedings pursuant to Section 36 (2) ZPO in conjunction with Section 9 EGZPO because the defendants have their respective domestic (general or special) place of jurisdiction in different Higher Regional Court districts and therefore the next higher court in the chain of instances is the Federal Court of Justice. The Bavarian Higher Regional Court will decide in its place because the case was first brought before a Bavarian court when the application was submitted to the Passau Regional Court.

Respondent 1) is a public limited company under Swiss law with its registered office in St. Gallen, Switzerland, which is a contracting state bound by the Lugano Convention. According to Art. 60 Lugano Convention, domicile is the place where (a) its registered office, (b) its central administration or (c) its principal place of business is located. In the case in dispute, according to the contents of the file, only the registered office can be considered as a connecting factor. The "Directorate for Germany", at whose domestic address service can be effected and in the present case the statement of claim has been served, is the claims representative of this insurance company. As an organizational unit, it processes and settles liability claims on behalf of the foreign insurance company that injured parties residing in Germany bring against the insurance company due to a traffic accident (Art. 79b, 79c SVG [Swiss Road Traffic Act]). It is therefore merely a branch of the Swiss insurance company. In the absence of a factual submission, it cannot be regarded as a principal place of business within the meaning of Art. 60 para. 1 lit. c) Lugano Convention.

However, in the event of a dispute, German courts have international jurisdiction over them and a special place of jurisdiction exists in the Munich Higher Regional Court district. This is sufficient to open up the scope of application of Section 36 (1) No. 3 ZPO and to establish the jurisdiction of the Bavarian Higher Regional Court. In cases with a foreign element, it is sufficient for the determination of jurisdiction in accordance with Section 36 Para. 1 No. 3 ZPO if a special place of jurisdiction is opened in Germany for the litigant without a domestic general place of jurisdiction. The special place of jurisdiction at the plaintiff's domicile pursuant to Art. 11 (2), Art. 9 (1) (b) Lugano Convention is given if a direct claim exists in principle under the applicable national law and its requirements are conclusively asserted by the plaintiff. This is the case here. For direct legal actions, Article 11(2) and Article 9(1)(b) Lugano Convention confer jurisdiction on the court of the plaintiff's domicile, provided that a direct legal action by the injured party against the tortfeasor's liability insurer domiciled in a state party to the Lugano Convention is admissible.

Such a direct legal action is possible. According to Art. 18 of Regulation (EC) No. 864/2007 of the European Parliament and of the Council of July 11, 2007 on the law applicable to non-contractual obligations (Rome II Regulation), which applies due to the foreign place of accident, it is sufficient if the insurance contract statute or the tort statute opens up the possibility of direct legal action. The same applies in accordance with Art. 11 i. In conjunction with Art. 9 of the Hague Convention on the Law Applicable to Road Traffic Accidents of May 4, 1971 (Hague Convention on Road Traffic; Hague Convention), which Switzerland and Slovenia have ratified. The law of the Swiss Confederation as a possible contractual statute permits the direct legal action of the injured party against the liability insurer with Art. 65 SVG. In accordance with Art. 4 Para. 2 Rome II Regulation, German substantive law is primarily applicable as the tort law, as both drivers involved in the accident are resident in Germany. Pursuant to Section 115 (1) sentence 1 no. 1 VVG, Section 1 PflVersG, the injured party then has a direct claim against the other party's motor vehicle liability insurance under German substantive law. However, in view of the provisions of Art. 18 of Directive 2009/103/EC of the European Parliament and of the Council of September 16, 2009 relating to insurance against civil liability in respect of the use of motor vehicles and the enforcement of the obligation to insure against such liability (6th Motor Insurance Directive), which has also been implemented in Slovenia, a direct claim against the other party's motor vehicle liability insurance exists even if the substantive law of Slovenia applies pursuant to Art. 4 (1) of the Rome II Regulation. According to Art. 20 ZOZP (Zakon o obveznih zavarovanjih v prometu), Art. 965 OZ (Obligacijski zakonik), the injured party can assert a direct claim (actio directa) against the liability insurance of the party responsible for the damage under Slovenian law.

Accordingly, a special domestic place of jurisdiction has been established for the defendant 1) at the court of the plaintiff's place of residence in the Munich Higher Regional Court district.

The requirements for a determination of jurisdiction pursuant to Section 36 (1) No. 3 ZPO are met.

Because the traffic accident at issue occurred in Slovenia, the relationship between the parties to the proceedings residing in Germany (Article 62 (1) Brussels Ia Regulation, Section 7 BGB), the claimant and the defendant (2), is a so-called non-genuine domestic case to which the Brussels Ia Regulation applies in principle. This is because the legal dispute already has a cross-border dimension due to the foreign location of the accident. The provisions of the Brussels Ia Regulation are directly applicable law in Germany.

Pursuant to Art. 11 para. 2 Lugano Convention, the injured party may bring an legal action against the insurer before any court that has jurisdiction pursuant to Art. 8 to 10 Lugano Convention for the legal action of the policyholder and the other parties involved in the insurance relationship. However, due to the foreign registered office of the insurer and the location of the accident abroad, no further domestic courts have jurisdiction in the present case.

The criteria for selecting the court in question are expediency and procedural economy. In principle, one of the courts at which the defendants have their general place of jurisdiction shall be selected. If one of the parties to the dispute does not have a general place of jurisdiction in Germany, the special places of jurisdiction opened for this party to the dispute in Germany must be included in the selection.

The Passau Regional Court was selected from the Stuttgart and Passau Regional Courts.

Source: Pixabay/ flag-3561417_1280

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