OLG Frankfurt; 2020-10-22; 16 U 54/19
Decision by national courts in the field of European Union law — ECLI:DE:OLGHE:2020:1022.16U54.19.00
Date: 2020-10-22
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82020DE1022(51)_ENG_SUMJURE
JURE summary
JURE summary
The plaintiff (hereinafter ‘the plaintiff’) asserted claims for damages from assigned rights against a shareholder of Company A (hereinafter ‘the defendant’) by way of an open partial action. The plaintiff claimed to have suffered damages of more than EUR 1 million from a securities transaction between the plaintiff’s custodian bank as commission agent, another Bank 1 and Company A that was cancelled due to an alleged mistrade.
The Landgericht Frankfurt (hereinafter ‘the Court of First Instance’) denied its international jurisdiction and dismissed the action as inadmissible.
The plaintiff appealed, arguing that international jurisdiction was established under Article 7(1) of the Brussels I Regulation (recast) (1) because the place of performance of the contract was Frankfurt am Main. The plaintiff pointed out that the securities were held in collective safe custody at Bank 2 in Frankfurt am Main and that the instruction to transfer the securities had to be issued by Company A to Bank 2 via the custodian bank. The service had only been rendered upon receipt of the instruction by Bank 2 in Frankfurt am Main, which made Frankfurt am Main the place of performance. In addition, the plaintiff argued that there was a jurisdiction agreement between the parties which stipulated Frankfurt am Main as the place of jurisdiction.
The Oberlandesgericht Frankfurt (hereinafter ‘the Court of Appeal’) overturned the judgement of the Court of First Instance and found that the German courts held international jurisdiction. Article 7(1)(a) of the Brussels I Regulation (recast) represented the applicable legal provision due to the fact that the subject matter of the dispute concerned contractual claims. These contractual claims arose from the securities transaction between Bank 1 and Company A. The plaintiff, to whom the claims had been assigned by Bank 1, was able to rely on the contractual nature of the claims. The fact that the defendant was not a direct party to the contract but was liable as a shareholder of Company A for its liabilities did not alter the contractual nature of the claim.
The place of performance of the contractual obligation was Frankfurt am Main. The place of performance is the place where the service is to be provided, in this case the transfer of the securities at Bank 2. As Bank 2 was based in Frankfurt am Main and the instruction to transfer the securities had to be entered into the custodian bank’s system in Frankfurt am Main, the place of performance was Frankfurt am Main.
The Court of Appeal also rejected the defendant’s argument that there was no choice-of-court agreement between the parties. It found that the plaintiff and Company A had implicitly developed a custom through the master agreements and previous transactions that established the place of jurisdiction in Frankfurt am Main for this transaction as well.
The Court of Appeal overturned the judgement of the Court of First Instance and referred the case back to the Court of First Instance for further hearing and decision.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.