OLG München; 2021-06-23; 20 U 6587/20
Decision by national courts in the field of European Union law — ECLI:DE:OLGMUEN:2021:0623.20U6587.20.00
Date: 2021-06-23
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82021DE0623(51)_ENG_SUMJURE
JURE summary
JURE summary
A son domiciled in Germany (hereinafter ‘the plaintiff’) filed an action against his mother living in Spain (hereinafter ‘the defendant’) requesting compensation for care costs paid for the defendant.
The plaintiff was granted power of attorney for care matters certified by a notary. The defendant was legally represented by her guardian, the brother of the plaintiff. By a decision of a court in Marbella, Spain, the brother of the plaintiff had been entrusted with the management of the defendant’s assets.
The Landgericht Landshut (hereinafter ‘the Court of First Instance’) rejected the action citing the lack of international jurisdiction on the part of German courts. Having regard to the fact that Article 23 of the ZPO (1) was not applicable under Article 5 of the Brussels I Regulation (recast) (2), the decisive fact was whether the defendant was domiciled in Germany, which was not the case.
The plaintiff lodged an appeal with the Oberlandesgericht München (hereinafter ‘the Court of Appeal’) claiming that the Court of First Instance assessed the question of the domicile solely based on German law and, moreover, not correctly. The defendant did not want to give up her domicile in Germany.
The appeal was successful. By answering the question regarding the German domicile of the defendant negatively without examining any evidence, the Court of First Instance violated the plaintiff’s right to be heard.
According to Article 62(1) of the Brussels I Regulation (recast), the question of the domicile was to be assessed under German law. Section 7(2) of the BGB (3) stipulates that a person may have their domicile in multiple places.
From the statements of the plaintiff, it was evident that he had never had the intention of giving up the German domicile of the defendant. The other son claimed that the defendant had lived exclusively in Spain since 2012, and intended to live only there permanently. The decisive question, however, was whether the defendant wanted to give up her domicile in Germany as of a moment when she still could make a decision about her domicile herself. To answer the question, further evidence was needed.
The Court of Appeal annulled the decision of the Court of First Instance and referred the case back to the Court of First Instance for a new hearing and decision.
(1) Zivilprozessordnung (Code of Civil Procedure).
(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.
(3) Bürgerliches Gesetzbuch (German Civil Code).