Torpedo (right)
In civil procedure law, a torpedo or a torpedo lawsuit is used when a party who expects a lawsuit against them tries to block the expected civil proceedings by filing a negative declaratory action .
The torpedo plaintiff tries to have his opponent's complaint rejected (or at least a suspension of the proceedings) because of the pending dispute by filing his own complaint.
The possibility of filing torpedo claims only exists at European level. It is only opened by the dispute theory (core theory) advocated by the ECJ, according to which two lawsuits have the same subject matter , provided they relate to the same circumstances, i.e. the same substantive questions have to be answered for their substantive decisions (for example whether a certain contract exists).
For comparison: In Austria, the filing of a negative declaratory action to block a performance or injunction against the plaintiff would not be possible because the performance or injunction has a different subject matter than the negative declaratory action due to the predominantly represented two-part dispute theory: the disputed subject is settled according to this view from the plea and the claim together, but the claim would be different in this case.
Historical situation
The torpedo was already possible before the EuGVVO was enacted in 2001, even to a greater extent than afterwards. While, according to the legal situation of the EuGVVO, a torpedo could only be successfully launched if the negative declaratory action was brought before the actual infringement or performance action, it was previously possible, due to various international pending cases of the individual actions, to subsequently submit a performance action with a negative one Block declaratory action.
Applicable legal position
Basically (as has been the case since the EuGVVO 2001 came into force), courts that are brought before with actions that have the same subject matter as proceedings pending in courts of other member states have to suspend the proceedings until a decision has been made on the jurisdiction of the first called Court is issued. This means that it is still possible to file a torpedo lawsuit before you are sued yourself and thus block the process.
When the EuGVVO came into force in 2012, however, the legal situation has changed: In order to counter the now quite common practice of torpedo actions, the regulation of Art. 31 Para. 2 EuGVVO was introduced, according to which a procedure that is brought before a court, which Is responsible by virtue of an agreement of jurisdiction between the parties, in any case gets priority. Other courts in which actions with the same subject matter have been pending must suspend the proceedings pending a decision on jurisdiction by the court with jurisdiction by virtue of the jurisdiction agreement. Thus, contracting parties can protect themselves against torpedo lawsuits by the contracting partner by agreeing on the place of jurisdiction.
However, this regulation again opens up the possibility of a subsequent torpedo action: Since the courts only examine their jurisdiction on the basis of the information provided by the plaintiff in the complaint, the defendant can initiate proceedings that are pending before a court that is competent according to the general rules of the Brussels I Regulation , through the (false) assertion of a choice of court agreement, start a process at a court of another member state and thus cause the ongoing proceedings to be suspended. In addition, with the Weber decision , the ECJ adopted an exception to the suspension obligation of Art. 29 EuGVVO in cases of exclusive jurisdiction in accordance with Art. 24 No. 1 EuGVVO. According to the predominant reading, the decision can be transferred to all other cases of exclusive jurisdiction according to Art. 24 EuGVVO.
In order for the torpedo fighter to gain as much time as possible, he has to choose a member state in which the procedure takes a very long time. Since Italy and Belgium have proven to be particularly “suitable” in the past, the Italian torpedo is usually used, and more rarely the Belgian torpedo.
scope of application
In the area of industrial property rights , the torpedo tactic represents a danger for a property right holder whose rights have been violated, especially in connection with warnings . If the injured person first sends a warning, he must expect the violator to use the torpedo tactic. However, if a lawsuit is filed immediately without a warning and the infringer recognizes the claims immediately, the plaintiff must bear all costs of the proceedings (in Austria, Section 45 ZPO).
Torpedo lawsuits also apply to general law of obligations if the plaintiff has an interest in delaying proceedings. Debtors, for example, resort to torpedo lawsuits in order to prevent an enforceable payment title from being quickly obtained against them. This can be fatal for the claimant, especially if his economic existence depends on a quick decision on the matter. In this way, creditors who actually have a legitimate claim can be forced to conclude a settlement that is disadvantageous for them by delaying the process for a long time.
literature
- Florian Sander, Steffen Breßler: The dilemma of legal equality between member states and different legal protection standards in the European Union - on how to deal with so-called torpedo lawsuits. Journal of Civil Proceedings 2009, pp. 157–185
- Marie Herberger: The torpedo lawsuit after the reform of the EuGVVO , Journal for Legal Studies (ZJS) 2015, p. 327 ( PDF )
- Georg Kodek , Peter Mayr: Civil Procedure Law 3rd Edition, Facultas.wuv, Vienna 2016, ISBN 978-3-7089-1359-9
- Robert Fucik, Alexander Klauser, Barbara Kloiber: ZPO - Austrian and European Civil Procedure Law 12th edition, MANZ 2015, ISBN 978-3-214-12853-1
- Ferdinand Gürtler: Torpedo actions in the light of the new EuGVO, Der Jurist 2013, pp. 1–18 ( PDF )
- Matthias Klöpfer: Abuse in European Civil Procedure Law , Tübingen 2016, ISBN 978-3-16-154255-8
Individual evidence
- ↑ Ferdinand Gürtler: Torpedo actions in the light of the new EuGVO . In: The lawyer . 2013, p. 1-18 ( PDF ).
- ↑ ECJ, judgment of 3.4.2014, C-438/12 (Weber). Retrieved April 19, 2017 .
- ^ Matthias Klöpfer, Abuse in European Civil Procedure Law, Tübingen 2016, p. 293 ff.
