OLG Düsseldorf; 2018-03-12; I-9 U 179/16
Decision by national courts in the field of European Union law — ECLI:DE:OLGD:2018:0312.9U179.16.00
Date: 2018-03-12
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82018DE0312(51)_ENG_SUMJURE
JURE summary
JURE summary
A company domiciled in Germany (hereinafter ‘the plaintiff’) filed an action against an attorney domiciled in Germany (hereinafter ‘the defendant’) demanding that he pay EUR 13.5 million against a concurrent transfer of purchased shares.
The plaintiff was considering buying shares of an Irish company which was supposed to fund the investments of a USA pension fund into dividend-bearing securities, this through several other intermediary companies. The plaintiff commissioned the defendant to prepare an expert opinion which would also answer the question whether this fund was entitled to have their capital gains tax refunded. Subsequently, the plaintiff acquired shares of the Irish company. The defendant, however, omitted to mention the risk that the claim for the refund could be prevented by a failure to prove that the capital gains tax had been really paid.
The Landgericht Düsseldorf (hereinafter ‘the Court of First Instance’) dismissed the action as inadmissible stating that the jurisdiction of the German court was prevented by the agreement on the place of jurisdiction which the plaintiff had not contested, in particular during the discussions regarding the limitation of liability.
The appeal filed by the plaintiff with the Oberlandesgericht Düsseldorf (hereinafter ‘the Court of Appeal’) was successful.
The action was admissible. Should the international jurisdiction of the German courts be not directly derived from the domicile of the defendant in Germany, it resulted from Article 24(1) of the new Lugano Convention (1). The defendant let himself be involved in the proceedings for he had not objected to the jurisdiction already in the response to the action, which is, under the national German procedural law, seen as the first statement of defence in the court seised.
In addition, the action was admissible. The pursued claim for compensation was subject to German law. The defendant violated his duty as advisor resulting from the legal services agreement concluded with the plaintiff. The mistake of the defendant was the cause for the purchase of shares. The defendant was not able to prove, as required under the case-law of the Supreme Court, that the respective loss would have been also incurred if he had fulfilled his consultancy duties properly.
The Court of Appeal partially modified the decision of the Court of First Instance and ordered the defendant to pay the plaintiff EUR 13.5 million against the reciprocal transfer of the purchased shares.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.