OLG München ; 2017-05-03; 7 U 4817/16
Decision by national courts in the field of European Union law — ECLI:DE:OLGMUEN:2017:0503.7U4817.16.0A
Date: 2017-05-03
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82017DE0503(51)_ENG_SUMJURE
JURE summary
JURE summary
A joint-stock company domiciled in Germany (hereinafter ‘the plaintiff’) applied for the issuance of a preliminary ruling against a company domiciled in Switzerland (hereinafter ‘defendant 1’), a president of a joint-stock company who was the former chairman of the board of directors of the plaintiff (hereinafter ‘defendant 2’) and a bank (hereinafter ‘defendant 3’), at whose subsidiary defendant 1 maintained a deposit of securities.
Defendant 1 granted several loans to the plaintiff in the total amount of CHF 26 mil. and EUR 12.25 mil. against a pledge of shares of a Swiss company (hereinafter ‘the AG’), in which the plaintiff had an interest of 60.5 % consisting in shares; these shares were deposited with defendant 3. The loan agreement, which was intended to be subject to Swiss law, stipulated Glarus, Switzerland, as the exclusive place of jurisdiction.
Even though defendant 1 had not originally exercised voting rights in respect to AG, defendant 1 later announced to the plaintiff that due to a changed situation, it would exercise its veto right under the agreement as well as its voting rights. The plaintiff objected to this decision, claiming that the loan would be repaid by the agreed date.
Besides applying for judicial legal protection against defendant 1 with the Kantonsgericht Glarus, Switzerland, the plaintiff also sought the issuance of a preliminary ruling with the Landgericht München I (hereinafter ‘the Court of First Instance’) seeking that defendant 1 be forbidden from dispose of the pledged shares of AG, to assign the claim for the shares to be handed over or to transfer the shares to another deposit or a bank. The plaintiff withdrew later its application with respect to defendant 2.
The Court of First Instance issued the preliminary ruling sought by the application without having conducted a trial. Upon the objection of defendant 1 and defendant 3, the Court of First Instance ordered a trial and confirmed the preliminary ruling with a final decision.
The appeal of defendant 1 and defendant 3 filed with the Oberlandesgericht München (hereinafter ‘the Court of Appeal’) was found justified.
The Court of First Instance did not hold international jurisdiction and therefore the application of the plaintiff had been inadmissible. All preconditions required for the effectiveness of the agreement on the place of jurisdiction concluded between the plaintiff and defendant 1 had been met under Article 23(1) of the of the new Lugano Convention (1).
In addition, the German courts also did not hold jurisdiction under Article 5(3) of the new Lugano Convention, as the agreement on the place of jurisdiction included in the loan agreement also covered the legal dispute relating to the tortious claims made by the plaintiff against defendant 1 based on actions of the governing bodies of defendant 1.
The international jurisdiction of the German courts was not given even with respect to defendant 3. Under Article 2(1) of the new Lugano Convention, an action against defendant 3 was to be filed in Switzerland. The preconditions under Article 5(3) of the new Lugano Convention (jurisdiction according to the place of the harmful event) as the sole regulation which could give rise to an exception from the main principle laid down in Article 2(1) of the new Lugano Convention had not been met. Neither the place where the event which gave rise to the harm occurred (Handlungsort), nor the place where the harmful event itself occurred (Erfolgsort) were in Germany. Therefore, no jurisdiction was given in Germany.
The Court of Appeal annulled the resolution and the ruling of the Court of First Instance and dismissed the application of the plaintiff seeking the issuance of a preliminary ruling.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.