NZG 2016, 471

Order of 03 November 2015
2 BvR 2019/09

By order published today, the Second Chamber of the Second Senate of the Federal Constitutional Court did not admit for decision a constitutional complaint lodged by a German company against the service of process in Germany of an action for damages brought in the United States of America. The constitutional complaint is directed against an order by the Düsseldorf Higher Regional Court (Oberlandesgericht) confirming that serving the action in Germany pursuant to the Hague Service Convention of 1965 was in compliance with the law. The complainant’s initial application [to reverse the Higher Regional Court’s order] has become moot after the U.S. courts, following the U.S. Supreme Court’s decision in the Kiobel case, had dismissed the action, and those decisions have become final. As the initial application has become moot, the necessary recognised legal interest in lodging a constitutional complaint is now lacking. The present case does not fall within the categories for which it is established under constitutional law that such an interest must be recognised by way of exception even after the initial application has become moot.

Facts of the Case and Procedural History:

The complainant is a corporation operating internationally as automotive supplier and arms manufacturer and also maintains two sites in the U.S.A. In November 2002, together with other multinational concerns, it was sued for damages by a group of South African plaintiffs in a class action before a court in the United States of America for aiding and abetting in human rights violations committed by the apartheid regime in South Africa. The plaintiffs invoked the Alien Tort Claims Act (ATCA), pursuant to which U.S. federal courts have original jurisdiction in civil actions brought by foreigners on tort acts committed in violation of international law or international treaties to which the United States is a member.

In April 2009, the U.S. District Court seized of the matter admitted the action to a limited extent but explicitly reserved its decision on personal jurisdiction and on the question of proper service for later. A U.S. Court of Appeals suspended the proceedings until decision of proceedings Kiobel et al. v. Royal Dutch Petroleum Co. et al. at that time already pending before the U.S. Supreme Court. In its judgment of 17 April 2013, the Supreme Court dismissed the Kiobel action for lack of jurisdiction of U.S. District Courts. It held that there was a presumption against extraterritorial application of laws (presumption against extraterritoriality), unless the legislature had specifically provided for such application. It further stated that even if claims touched and concerned the territory of the U.S.A., their link to the United States had to be strong enough to displace the presumption against the extraterritorial application of the ATCA. As a consequence, in December 2013, the District Court dismissed the action against the complainant in the present case. That decision has become final since then.

In Germany, the Düsseldorf Local Court (Amtsgericht), upon decree by the president of the Düsseldorf Higher Regional Court, served the action in July 2003. The Düsseldorf Higher Regional Court rejected the appeal against the service in its order of 22 July 2009 as unfounded. This order is challenged via the constitutional complaint.

Key Considerations of the Chamber:

The constitutional complaint is inadmissible.

  1. The complainant’s initial application has become moot. After the final dismissal of the action in the United States, the complainant lacks the interest as well as the possibility to claim invalidity of the service of process.
  2. Since the initial application has become moot, the complainant lacks the recognised legal interest in lodging a constitutional complaint that is necessary to further pursue the constitutional complaint. Only by way of exception and in particular cases can a legal interest in lodging a constitutional complaint still be recognised under such circumstances. The mere fact that the complainant is adversely affected by the decision on costs is not sufficient in this regard. The Federal Constitutional Court only acknowledges a continuing legal interest in lodging a constitutional complaint if the complainant, based on the risk of repetition of the challenged conduct, has a legitimate interest in the statement that the challenged act or omission was unconstitutional, or if there has been a profound and particularly severe interference with fundamental rights, or if otherwise a constitutional issue of general significance would not be clarified, and a severe interference with fundamental rights is asserted. These requirements are not met in the present case.
  3. a) With regard to a risk of repetition, under constitutional law, the complainant does not have a legally recognised interest in having the challenged order reviewed for its compatibility with the Constitution. There is no indication that, as the complainant assumes, it will again have to face court proceedings in the United States in the future. Comments on the Kiobel judgment rendered by the US Supreme Court concur in that, in the future, the ATCA will no longer be applicable to circumstances as in the present case where foreign plaintiffs file suits against foreign defendants for violations of international law in a foreign country and that, therefore, comparable actions before U.S. federal courts are no longer to be expected.
  4. b) Nor is there a profound and particularly severe interference with fundamental rights. Such interferences are mainly those which the Basic Law has made subject to a judicial decision, as for example the search of a person’s house or detention pending deportation. Service of process that jeopardizes mere financial interests of the complainant is not comparable to such interferences.
  5. c) Finally, nor can a continuing recognised legal interest in lodging a constitutional complaint be derived from the assumption that an issue of general constitutional significance requires clarification. To the extent relevant for the decision in the present case, there are no constitutional concerns against the Hague Service Convention, which has been integrated into the German legal order by Act of 22 December 1977. For the present case there is no need to clarify whether the service of process in Germany of an action pending in a foreign country would be compatible with Art. 2 sec. 1 of the Basic Law (Grundgesetz – GG) in conjunction with the rule of law (Rechtsstaatsprinzip) if the objective pursued by the action obviously violated indispensable principles of a free state under the rule of law. The legal institutions (Rechtsinstitute) used and rules applied in the U.S. court proceedings against the complainant neither individually nor taken together constitute such an obvious violation.

In its jurisprudence, the Federal Constitutional Court has already adjudicated on some of these legal institutions: for example, it held that an action for punitive or exemplary damages under U.S. law does not per se violate indispensable rule-of-law principles. This also applies to the legal policy decision to permit class actions for tortious acts with a large group of people having sustained damages, a legal institution that must be generally respected by the German side. In such actions, an individual member of the “class” does not have to participate, as long as indispensable rights of defence are complied with. Nor does according to the Federal Constitutional Court’s jurisprudence a pre-trial discovery held between commencement of an action and the oral hearing constitute per se a violation of indispensable principles of a free state under the rule of law.

The obligation to respect these legal institutions might find its limits where proceedings in foreign courts are obviously being misused. There is, however, no evidence to indicate that the claim before the court is – at least in its amount – obviously without substance, that the defendant does obviously not have anything to do with the challenged conduct, or that considerable pressure, also by the media, is applied forcing the complainant to accept an unjustified settlement. Nor can it be ruled out from the outset that the complainant as a legal person under private law can be held responsible under international law. According to one view held in international law doctrine, a core of basic human rights obligations exists that also apply to individual natural persons or legal persons under private law and which, in case they are violated, might entail sanctions under international law. It cannot be completely ruled out that such violations might cause liability under private law. Therefore, the mere attempt to enforce such liability before the courts is not in itself sufficient to indicate obvious abuse of legal rights.

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The translations of Federal Constitutional Court decisions are intended for information purposes only; the sole authoritative versions are the official German originals. Although the translations were prepared with the utmost care, the Federal Constitutional Court is not responsible fot their accuracy and completeness.

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