European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

In case of a counterclaim deriving from the contract or the fact on which the original claim is based, Article 8(3) of Regulation No 1215/2012 allows jurisdiction to be granted to the court seized of the original claim. 

According to the Court of Justice, counterclaim shall mean “only” claims submitted by claimants for a separate judgment or decree . Article 8(3) “does not apply to the situation where a defendant raises, as a pure defense, a claim which he allegedly has against the plaintiff” . In other words, the counterclaim must not only derive from the contract or the fact on which the original claim is based, but also constitute a distinct claim from the defendant. It has also held that the court in which the original claim is pending has jurisdiction to hear a counterclaim seeking the reimbursement on the ground of unjust enrichment of a sum corresponding to the amount agreed in an extrajudicial settlement, where that claim is brought in fresh legal proceedings between the same parties, following the setting aside of the judgment delivered in the original proceedings between them, the enforcement of which gave rise to the extrajudicial settlement .

Case C-341/93 Danværn Production v Schuhfabriken Otterbeck [1995] ECR I-2053, LawLex200900000405JBJ: a claim by the defendant which seeks the pronouncement of a separate judgment or decree against the plaintiff assumes that the court seized has jurisdiction over the original claim, while a defense is an integral part of the action initiated by the plaintiff and therefore does not involve that the plaintiff be 'sued' in the court in which his action is pending. 

Case C-341/93 Danværn Production v Schuhfabriken Otterbeck [1995] ECR I-2053, LawLex200900000405JBJ, paragraph 12: Article 8(3) would have applied where the defendant, by a separate claim in the context of the same proceedings, had sought a judgment or decree ordering the plaintiff to pay him a debt. 

Case C-185/15 Kostanjevec, Judgment of 12 October 2016, LawLex201600001672JBJ.

338. Counterclaim