OLG Düsseldorf; 2024-08-28; I-37 W 1/24, 37 W 1/24
Decision by national courts in the field of European Union law — ECLI:DE:OLGD:2024:0826.37W1.24.00
Date: 2024-08-26
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82024DE0826(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, decided by the Oberlandesgericht Düsseldorf (hereinafter ‘the Court of Appeal’), concerns jurisdiction over a claim brought by United Kingdom pension institutions against a German company following a regulatory decision made by the United Kingdom Pensions Regulator.
The plaintiffs are, first, the trustee of a United Kingdom occupational pension fund (a private company under English law) as the substantive creditor, and second, the Pension Protection Fund (PPF), a United Kingdom statutory body that safeguards occupational pensions in the event of employer insolvency and is formally entitled under the PA04 (1) to enforce claims arising from regulatory decisions. The defendant is a German stock corporation that was the sole shareholder of R. Ltd. (UK) until 2013. Its subsidiaries, C. Ltd. and F. Ltd., financed the pension scheme. In 2013, the defendant sold R. Ltd. to an undercapitalised vehicle through a management buy-out, primarily funded by loans from the subsidiaries. By 2014, both subsidiaries had become insolvent, leaving a substantial deficit in the pension fund.
In 2021, the United Kingdom Pensions Regulator issued a ‘Contribution Notice’ under Section 38 of the PA04, requiring the defendant to pay approximately GBP 2.08 million to the trustee. The regulator concluded that the sale had harmed the pension fund by stripping the employer companies of their ability to meet pension obligations. The plaintiffs brought the case for payment in Germany, arguing that the notice gave rise to a private law debt under Sections 38, 38a and 40 of the PA04, emphasising that the regulator was not a party to the proceedings and that the plaintiffs were acting as private entities.
Initially, the defendant contested jurisdiction, asserting that Verwaltungsgerichte (administrative courts) or Sozialgerichte (social courts) were competent, since the notice resembled an administrative act serving public policy. The defendant also contended that the claim was effectively an attempt to enforce a United Kingdom regulatory measure that is not automatically recognised in Germany. Subsequently, however, the defendant accepted that the matter should be treated as a private law issue.
The Landgericht Düsseldorf (hereinafter ‘the Court of First Instance’) rejected ordinary civil jurisdiction, reasoning that the claim stemmed solely from a sovereign act of the regulator and was comparable to an administrative decision under German law. The case was referred to the Verwaltungsgericht Arnsberg (Administrative Court in Arnsberg). Both the plaintiffs and the defendant appealed.
The Court of Appeal overturned the decision. It held that jurisdiction must be assessed under the Brussels I Regulation (recast) (2), which continues to apply post-Brexit when one party is domiciled in a Member State of the European Union. As the defendant is domiciled in Germany, the Regulation applies. The Court classified the dispute as a ‘civil and commercial matter’ within the meaning of Article 1(1) of the Brussels I Regulation (recast), rather than an administrative or social security matter. Occupational pensions are supplementary private schemes, not part of the statutory social security system, and the plaintiffs act as private entities. The regulator is not a party to the litigation, and the Contribution Notice itself is not subject to judicial review in Germany; it serves only as the factual basis for a civil claim.
The Court of Appeal therefore held that the case must proceed before the civil courts. It remitted the matter to the Court of First Instance for examination of the substantive claim, leaving open the question of whether the German court should recognise the notice as directly enforceable or whether it should instead review the substantive conditions of liability under United Kingdom law.
(1) Pensions Act 2004.
(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 (recast).