Local jurisdiction in cross-border proceedings against domestic co-litigants Higher Regional Court of Frankfurt am Main on the place of jurisdiction of the substantive connection pursuant to Art. 8 Brussels I Regulation in the case of domestic

In its decision dated 5 April 2024 (case reference: 13 UH 10/23), the Higher Regional Court of Frankfurt am Main commented on the controversial question in Germany as to whether the local jurisdiction of the court in a cross-border action against parties who are both domiciled in the same Member State is determined in accordance with EU law or national law.

Art. 8 Brussels I Regulation provides for a special place of jurisdiction for co-litigants, i.e. a co-litigant can be sued in the court of the domicile or residence of the other co-litigant, even if he has no general place of jurisdiction there, if there is such a close relationship between the actions that joint proceedings appear necessary. In German legal doctrine, the scope of Art. 8 Brussels I Regulation is disputed: some argue that this provision only applies to defendants who do not reside or have their registered office in the state of jurisdiction, so that in the case of actions against several domestic defendants without a common place of jurisdiction, the local jurisdiction is to be determined exclusively in accordance with the German Code of Civil Procedure. The Higher Regional Court of Frankfurt am Main took a different view: According to the wording of the provision, cases in which the defendants are domiciled in the same member state but are sued by a foreign plaintiff are also covered. It would then be up to the plaintiff to decide which "anchor defendant" to choose: by his choice, he would determine both the international and local jurisdiction for his action against the other parties involved.

This was the case here: We brought an action on behalf of our Italian client against two German co-defendants domiciled in different jurisdictions at the general place of jurisdiction of one of the two defendants, relying on Art. 8 of the Brussels I Regulation. The "non-jurisdictional" defendant had objected to the lack of local jurisdiction of the court seised. However, the Oberlandesgericht Frankfurt am Main confirmed the applicability of Art. 8 Brussels I Regulation to our case, so that the proceedings could continue before the court seised.

This does not mean that a different result would have been achieved if national procedural law had been applied: Since the defendants were intervening parties pursuant to Section 60 ZPO, the jurisdiction of the court seised for the action against the "non-jurisdictional" intervening party should have been determined by the Higher Regional Court of Frankfurt pursuant to Section 36 ZPO.

Foreign plaintiffs should now be spared this additional procedural step if and insofar as the courts of lower instances recognise - and share - the legal opinion of the Frankfurt Higher Regional Court.

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