OLG Karlsruhe; 2023-05-15; 5 UF 31/22
Decision by national courts in the field of European Union law — ECLI:DE:OLGKARL:2023:0515.5UF31.22.00
Date: 2023-05-15
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82023DE0515(51)_ENG_SUMJURE
JURE summary
JURE summary
A mother (hereinafter ‘the plaintiff’) asserted a claim against her daughter (hereinafter ‘the defendant’) for consent to the correction of the Swiss land register by way of representative action.
In 2015, the defendant’s father transferred an apartment in Switzerland to the defendant on the basis of a gift agreement. In return, the defendant granted him a lifelong right of use of the apartment. Following disagreements between the father and the defendant, the plaintiff argued that the transfer of the condominium was invalid pursuant to Section 1365 of the BGB (1), as it constituted a disposal of the entirety of the father’s assets. The consent of the spouse is required for such an order to be effective.
The defendant challenged the international jurisdiction of German courts.
The Amtsgericht Emmendingen (hereinafter ‘the Court of First Instance’) rejected the plaintiff’s claim. The plaintiff had not proven that the condominium represented the entirety of the father’s assets and that, therefore, this constituted a disposal of the assets as a whole, which required consent within the meaning of Section 1365 of the BGB.
The plaintiff appealed against the decision of the Court of First Instance. The Oberlandesgericht Karlsruhe (hereinafter ‘the Court of Appeal’) ruled that the German court did not possess international jurisdiction. The Court of Appeal held that, pursuant to Article 22(1) of the new Lugano Convention (2), jurisdiction over rights in rem in immovable property lies exclusively with the courts of the state in which the property is situated, which in this case was the Swiss courts. It found that the review of the invalidity of the gift agreement does not constitute a matter of matrimonial property regimes within the meaning of the new Lugano Convention, but rather constitutes a civil law matter relating to property rights.
The Court of Appeal amended the decision of the Court of First Instance to the effect that the plaintiff’s applications were rejected as inadmissible since international jurisdiction lies with the Swiss courts. The plaintiff’s first auxiliary claim, which concerned the declaration of the invalidity of the binding transaction (the gift agreement), was also rejected as inadmissible, as it was subject to a jurisdiction agreement in favour of the Swiss courts.
The Court of Appeal also stressed that the interim decision of the Court of First Instance on the international jurisdiction of German courts is not binding, since the question of international jurisdiction must be examined by the courts at every stage of the proceedings.
(1) Bürgerliches Gesetzbuch (German Civil Code).
(2) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.