Saarländisches Oberlandesgericht Saarbrücken; 2020-02-20; Banken; 4 U 109/17
Decision by national courts in the field of European Union law — ECLI:DE:OLGSL:2020:0220.4U109.17.00
Date: 2020-02-20
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82020DE0220(51)_ENG_SUMJURE
JURE summary
JURE summary
A bank domiciled in Germany (hereinafter ‘the plaintiff’) and a bank domiciled in Luxembourg (hereinafter ‘the defendant’) filed a mutual action seeking the release of an amount deposited with the Amtsgericht Merzig (Merzig District Court) in Germany.
On 29 March 2011, the plaintiff granted a loan under German law to a Luxembourgish citizen domiciled in Germany (hereinafter ‘the insolvency debtor’). In order to secure the loan, the insolvency debtor assigned her wage and pension claims against her employer in Luxembourg.
On 15 June 2011, the insolvency debtor concluded another loan agreement with the defendant. The competent Luxembourg Trésorerie de l’État was informed about the assignment of wage and pension rights of the insolvency debtor contained therein on 20 September 2012.
After the insolvency proceedings regarding the assets of the insolvency debtor were opened, the appointed insolvency trustee collected from the Luxembourg employer of the insolvency debtor parts of her wages totalling approximately EUR 14 000.
Both parties to the dispute sought that the insolvency trustee hand over the collected amount to them.
The Landgericht Saarbrücken as the court seized (hereinafter ‘the Court of First Instance’) upheld the action of the plaintiff and dismissed the counter action of the defendant.
The defendant lodged an appeal with the Saarländisches Oberlandesgericht Saarbrücken (hereinafter ‘the Court of Appeal’) against this decision claiming that contrary to the opinion of the Court of First Instance it was necessary to take into account the status of the claim when deciding about the effects of the assignment towards third persons. According to the publicity requirement existing in Luxembourg, creditors, i.e. the defendant, should be able to rely on the existing security.
The appeal was found justified.
Contrary to the opinion of the Court of First Instance, the dispute between the assignees (the plaintiff and the defendant) without any participation of the insolvency administrator did not fall under the ancillary jurisdiction under Article 3(1) of Council Regulation (EC) No 1346/2000 (1). The Court of First Instance was correct to declare its own international jurisdiction under Article 26(1) of the Brussels I Regulation (recast) (2) due to the fact that both parties entered an appearance in the proceedings.
Based on an expert opinion, the court established that under the law of Luxembourg, the assignment that was agreed later, i.e. towards the defendant, and not the earlier assignment made in favour of the plaintiff, was effective towards third persons. An assignment of a claim becomes effective towards third persons only upon the notification of the claim debtor, which was in this case made only by the defendant. According to the laws of Luxembourg, the notification was crucial for determining the priority of the assignees even though there had been an assignment under the laws of a different country (German international private law) which did not require the notification of the third party as a precondition for its effectiveness. The status of an assigned claim and the related clarity as to whom the debtor had to pay were also decisive under German international private law.
Based on the appeal of the defendant, the Court of Appeal changed the decision of the Court of First Instance, dismissed the action of the plaintiff and ordered the plaintiff to declare that it will release the amount deposited with the Merzig District Court to be handed over to the defendant.
(1) Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings.
(2) 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.