International jurisdiction (Germany)

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The German international jurisdiction determines whether a German court is authorized to resolve a legal dispute. The international jurisdiction is not determined by a uniform international jurisdiction, but results from autonomous German law.

Concept and delimitation

German international jurisdiction determines when a German court is called to resolve a legal dispute. The German state can freely determine the international jurisdiction of its courts. There is no uniform, centrally regulated distribution of international responsibility. It is disputed whether the general rules of international law set limits. One view in jurisprudence sees this restriction as given when the dispute has no relation to the forum state.

International jurisdiction, local jurisdiction, and jurisdiction

The term international jurisdiction is to be distinguished from the international legal figure of jurisdiction and that of the local jurisdiction of internal law. International jurisdiction determines whether the courts of a state are called to rule in their entirety; the local jurisdiction defines the distribution of responsibilities within a state. International jurisdiction is seldom specifically regulated in Germany and is usually derived from the local one, but it still forms its own process requirement that must be checked independently. There can be local jurisdiction without international jurisdiction, but also international jurisdiction without local jurisdiction. According to general opinion in German jurisprudence (unlike juridiction in France), jurisdiction is a separate procedural requirement that is excluded, especially in the case of diplomatic immunities .

Direct and indirect responsibility

Direct jurisdiction indicates whether German jurisdiction is available to resolve disputes between parties; indirect jurisdiction as to whether German courts recognize the decisions of foreign courts.

Connecting criteria

Party-related and factual criteria can be considered as connecting factors for the affirmation of international jurisdiction. For the general place of jurisdiction , the relevant criterion of domicile or habitual residence is best suited: Since international jurisdiction often also determines the choice of the applicable international private law and thus the material law applicable to the matter, the rule is actor sequitur forum rei in the interests of the defendant to attach particular weight. Other legal systems (e.g. France), on the other hand, are also linked to nationality for the general place of jurisdiction.

Factual connecting criteria often meet the plaintiff or see their legitimacy in the proximity of the court. They open up special places of jurisdiction for certain disputes, such as the place of performance , the place of the crime in tort lawsuits and the location.

As exorbitant jurisdiction is called international uncommon linking factors which are whether its size from other states often referred to as undesirable. The exorbitant place of jurisdiction in Germany is the jurisdiction according to § 23 sentence 1 alternative 1 ZPO, which allows an action where the defendant's assets are located. For example, the jurisdiction according to Art. 14 C.civ. in France, which allows any French national to take legal action in France.

Exclusive international jurisdiction

There are often several places of jurisdiction available to the plaintiff. However, for reasons of legal policy, the German legislature can also determine exclusive responsibilities; in this case an action is only possible at the specified place of jurisdiction. This place of jurisdiction cannot be derogated even by party agreement.

Forum shopping

As forum shopping is defined as the use of co-existing international jurisdiction of different countries. The plaintiff chooses the courts of the state which have the most favorable substantive law.

Legal sources

European law and international treaties

Within the EEC states , the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (GVÜ) came into force on September 27, 1968 . The aim of this international treaty was to facilitate the mutual recognition and enforcement of judicial decisions with regard to Art. 220 (= 293) of the EC Treaty . It was replaced (initially with the exception of Denmark) by the regulations Brussels I (EuGVVO) from (2001) and Brussels IIa (EuEheVO) . The Lugano Convention , which has almost the same content as the EuGVVO, applies to Switzerland, Iceland and Norway .

The following also apply to some specialist areas:

Autonomous German law

In autonomous German law, international jurisdiction is seldom explicitly regulated. However, the rules on local jurisdiction are extended to include international jurisdiction: If, according to the ZPO, a German court has local jurisdiction, German international jurisdiction is inferred.

The following laws contain express regulations governing international jurisdiction:

  • Sections 38, 40, (606, 606a, 640, 640a old version) ZPO
  • § 12 VerschG
  • Section 738a HGB .

Direct jurisdiction

Powers of the disputed jurisdiction

For cases with foreign contact to other member states of the EU, in most cases Europe-wide uniform jurisdiction applies in Germany according to the EU regulations on jurisdiction in civil and matrimonial matters:

→ Regulation (EC) No. 44/2001 (EuGVVO)
→ Regulation (EC) No. 2201/2003 (EuEheVO)

In most other cases, international jurisdiction is derived from local jurisdiction : if a German court has local jurisdiction, it also has international jurisdiction.

General place of jurisdiction

The principle of actor sequitur forum rei also applies to international jurisdiction : The plaintiff must therefore take legal action in a foreign court, the defendant can rely on a legal system known to him and the use of his own language. The ZPO differentiates between natural and legal persons for the general place of jurisdiction :

  • Natural persons: According to §§ 12, 13 ZPO natural persons have their general place of jurisdiction regardless of their nationality at their place of residence . The term residence is interpreted according to the lex fori , i.e. §§ 7 to 11 BGB.
  • Legal persons: According to §§ 12, 17 ZPO legal persons have their general place of jurisdiction at their statutory seat .

Special places of jurisdiction

Jurisdiction for contractual disputes
Jurisdiction of the place of performance

According to § 29 ZPO the plaintiff can sue at the place of jurisdiction of the place of performance . The requirements of § 29 ZPO are checked in three stages:

  1. Existence of a contractual claim. Contractual claims are to be qualified according to lex fori .
  2. Disputed Obligation. The focus is not on the place of performance of the contract, but that of the specific obligation in dispute.
  3. Place of fulfillment. The prevailing opinion determines the place of performance according to the lex causae .
Lawsuits by and against consumers

§ 29c ZPO states that at the doorstep of the consumer always as plaintiffs in addition to his residence complain, can be sued as a defendant only there. This regulation is also designed to be double-functional.

Insurance contracts

Section 215 VVG stipulates additional, derogation-proof jurisdiction at the domicile / habitual residence of the policyholder.

Employment contracts

The general regulations of the ZPO apply to employment contracts.

Place of jurisdiction for the unlawful act

The proximity of the evidence serves the regulation of § 32 ZPO, according to which legal action can be taken at the place where the unlawful act was committed (forum delicti). In the case of distance and stray offenses , both the place of action and the place of success count as the crime scene (ubiquity principle).

Place of jurisdiction for the location

An exclusive place of jurisdiction arises according to § 24 ZPO for real rights to immovable objects at their location. Real right and immovable property are qualified according to lex fori .

Place of jurisdiction of the branch

Section 21 ZPO opens a place of jurisdiction for branches located in Germany .

Place of jurisdiction for company law

According to § 22 ZPO, shareholders can sue their company at the general place of jurisdiction of the company and be sued there by the company.

Property jurisdiction

A special feature (in some cases heavily criticized) is the property jurisdiction according to § 23 ZPO. According to this, the plaintiff can also sue in the German courts if the defendant's assets are in Germany. In order to limit the exorbitant jurisdiction, the case law requires a sufficient domestic connection as an additional prerequisite for jurisdiction.

Jurisdiction agreements

Jurisdiction clauses, i.e. contractual agreements on the place of jurisdiction, are generally permitted; they are regulated in §§ 38–40 ZPO. Two constellations are possible:

  • Establishment of a legally not given jurisdiction ( prorogation )
  • Exclusion of a legally given jurisdiction ( derogation )

Responsibilities in family matters and in voluntary jurisdiction

International jurisdiction for family matters and voluntary jurisdiction is regulated in Sections 98 to 106 of the FamFG.

Procedural matters

According to the prevailing opinion, the international jurisdiction for the disputed jurisdiction applies analogously to Section 261 (3) No. 2 perpetuatio fori .

Indirect jurisdiction

According to Section 328 (1) No. 1 ZPO, the recognition competence corresponds to the decision-making competence: German courts can only recognize the decisions of foreign courts if they would have had the decision-making competence if German law had been applied hypothetically (so-called mirror image principle).

Web links

Wikibooks: Exam Repetitorium Law: Focus Area Private International Law: Responsibility  - Learning and Teaching Materials

literature

Collections of laws
Secondary literature
  • Heinrich Nagel and Peter Gottwald : International Civil Procedure Law . 6th edition. Otto Schmidt, Cologne 2006, ISBN 978-3-504-47096-8 , § 3 - International jurisdiction.
  • Haimo Schack : International Civil Procedure Law . 4th edition. CH Beck, Munich 2006, ISBN 3-406-54833-4 , § 8. International jurisdiction (marginal numbers 185-409).

Individual evidence

  1. ^ Haimo Schack: International Civil Procedure Law . 4th edition. CH Beck, Munich 2006, ISBN 3-406-54833-4 , Rn. 243.