In its decision of April 5, 2024 (Case No. 13 UH 10/23), the Court of Appeal of Frankfurt am Main commented on the question, controversial in Germany, as to whether the local jurisdiction of the court in the case of a cross-border claim against co-defendants domiciled in the same Member State is determined according to EU law or national law.

Article 8 of the Brussels Ia Regulation provides for special jurisdiction for co-defendants, i.e. a co-defendant may be sued in the courts for the domicile or residence of the other co-defendant, even if they do not have a general place of jurisdiction there, if the claims are so closely connected that joint proceedings appear to be expedient. The scope of Article 8 of the Brussels Ia Regulation is controversial in German legal doctrine: some argue that this provision applies only to co-defendants who are not domiciled or resident in the State of the court, so that in a lawsuit against several domestic co-defendants who do not have a common place of jurisdiction, local jurisdiction must be determined exclusively in accordance with the German Code of Civil Procedure (Zivilprozessordnung). The Court of Appeal in Frankfurt am Main took a different view: according to the wording of art. 8, such provision also covers cases where the defendants are domiciled in the same Member State but are sued by a foreign plaintiff. It would then be up to the plaintiff to choose the "anchor defendant": by making that choice, the plaintiff would determine both the international and the local jurisdiction for its action against the other parties.

This was the case here: We had brought an action for our Italian client against two German co-defendants domiciled in different German jurisdictions, in the general jurisdiction of one of the two defendants, on the basis of Article 8 Brussels Ia Regulation. The co-defendant domiciled in a different jurisdiction had objected to the local lack of jurisdiction of the court seised. However, the Court of Appeal in Frankfurt am Main confirmed the applicability of Art. 8 Brussels I Regulation to our case, so that the proceedings could continue in the court seised.

This does not mean that a different result would have been reached if national procedural law had been applied: as the defendants were co-defendants within the meaning of Section 60 of the German Code of Civil Procedure (ZPO), the Frankfurt Court of Appeal would have had to determine the jurisdiction of the court seised for the action against the co-defendant not domiciled in that same judicial district, pursuant to Section 36 of the ZPO.

Foreign plaintiffs should now be spared this additional procedural step if the lower courts are aware of - and share - the above summarised legal opinion of the Frankfurt Court of Appeal.