Schleswig-Holsteinisches Oberlandesgericht; 2014-12-04; 5 U 89/14
Decision by national courts in the field of European Union law — ECLI:DE:OLGSH:2014:1204.5U89.14.0A
Date: 2014-12-04
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82014DE1204(52)_ENG_SUMJURE
JURE summary
JURE summary
A private individual domiciled in Germany (hereinafter ‘the plaintiff’) brought an action seeking damages from the Hellenic Republic (hereinafter ‘the defendant’).
The plaintiff acquired bonds issued by the defendant. Due to the critical debt situation of the defendant, the government of the defendant carried out a restructuring process of his government bonds and the Greek Parliament adopted, inter alia, Law No 4050/2012 (hereinafter ‘the Conversion Act’), which, by majority vote of the bondholders, resulted in a subsequent modification of the terms and conditions of the bonds. The plaintiff’s bonds were also de-recognised, and instead new securities were acquired, which securitised a 53.5 % lower payment claim in relation to the nominal volume.
The Court of First Instance dismissed the application as inadmissible. It is not at all necessary to examine whether Article 5(3) of the Brussels I Regulation (1) applies as German jurisdiction to be examined of its own motion does not apply. The defendant, by invoking the Conversion Act, acted within the framework of his sovereign activity and the Court of First Instance, by ruling on the merits of the case, encroached upon the sovereignty of another State under international law.
The plaintiff’s appeal to the Oberlandesgericht Schleswig-Holstein (hereinafter ‘the Court of Appeal’) was unsuccessful.
Possible state immunity is to be assessed as a priority prior to determining international jurisdiction. The Conversion Act was enacted in relation to the defendant and this activity is subject to state immunity. In doing so, the defendant acted sovereignly and not merely fiscally, as the plaintiff wrongly asserts. Unilateral modification of the terms of the contract would not be possible in a purely civil law relationship between private parties.
The Court of Appeal dismissed the plaintiff’s appeal against the judgment of the Court of First Instance.
(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.