OLG München; 2016-10-13; 23 U 1848/16
Decision by national courts in the field of European Union law — ECLI:DE:OLGMUEN:2016:1013.23U1848.16.0A
Date: 2016-10-13
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82016DE1013(52)_ENG_SUMJURE
JURE summary
JURE summary
The case dealt with by the Oberlandesgericht München (hereinafter ‘the Court of Appeal’) concerned a procedural impossibility of a setoff resulting from an agreement on a foreign place of jurisdiction and the breach of trust through asserting a right of retention.
The parties entered into an agency agreement on 1 September according to which the defendant was obliged to arrange for business opportunities for the plaintiff. Under Article 9 thereof, the place of jurisdiction and the place of performance regarding all obligations under this agreement was solely the registered seat of the company. Later on, the parties concluded an agreement for the supply of goods. In connection with this agreement, the plaintiff has a claim against the defendant which the plaintiff pursued with the action.
The plaintiff terminated the agency agreement with immediate effect on 28 March 2012. Subsequently, the defendant filed an action against the plaintiff seeking to be provided with an excerpt from their books and compensation for damage due do the immediate termination of the contract. The parties concluded a settlement with respect to the excerpt from the books. When the defendant tried to enforce the settlement, the plaintiff filed an opposing action with the Bezirksgericht Fürstenfeld. This action was dismissed by a final and effective judgment.
After the Landgericht München (hereinafter ‘the Court of First Instance’) ordered the defendant to pay the compensation, the defendant lodged an appeal against this decision.
The Court of Appeal held international jurisdiction regarding the sued claim under Article 4(1) of the Brussels I Regulation (1). The claim for the payment of the purchase price pursued by the action followed from the agreement for the supply of goods, which indisputably had not contained any agreement on the place of jurisdiction. Under Article 4(3) of the Rome I Regulation (2),  the agreement for the supply of goods was subject to German law as the warehouse from which the defendant domiciled in Germany was taking the goods under the agreement for further sale in Germany was also located in Germany.
The defendant was not right to object that the claim had become extinguished by a set-off. By agreeing on the exclusive jurisdiction being at the seat of the plaintiff, the parties also excluded any possibility to assert the set-off objection. Despite the fact that the defendant was entitled to be provided with the excerpt from the books, the defendant’s assertion of a retention right constitutes a breach of trust due to the fact that he was preventing the fulfilment of a claim of the plaintiff, which he himself did not challenge, based on his claim regarding the excerpt from the books even if he had not had any interest in being provided therewith at that time. The defendant already had an enforceable title against the plaintiff to be provided with excerpt from the books. At that time, the defendant stated that it had no interest to pursue the enforcement further and accepted, at least for the time being, the additional documents handed over by the plaintiff after the issuance of the final decision terminating the opposing action proceedings.
The Court of Appeal decided to dismiss the appeal of the defendant.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).