OLG Hamm; 2017-05-08; I-32 SA 27/17
Decision by national courts in the field of European Union law — ECLI:DE:OLGHAM:2017:0508.32SA27.17.00
Date: 2017-05-08
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82017DE0508(51)_ENG_SUMJURE
JURE summary
JURE summary
The dispute concerns the determination of the place of jurisdiction for an order for payment procedure against a defendant 1 domiciled in Switzerland and a defendant 2 domiciled in C2, as well as the place of performance stipulated in an agreement for the supply of electricity. This was ruled upon by Oberlandesgericht Hamm (hereinafter ‘the Court of First Instance’).
The plaintiff is a company with its registered office in L, and intended to pursue the defendants jointly and severally pursuant to a contract for the supply of electricity to a geographical consumption center in C2. The plaintiff, therefore, requested for the competent court to be designated.
Pursuant to Article 5(1)(a) of the New Lugano Convention (1), a person may be sued in another Member State where a contract, or claims arising from a contract, are the subject of proceedings in the courts of the place of performance of the obligation in question. Thereby, the place of performance of the obligation relating to the sale of goods is the place where, in accordance with the contract, the goods were delivered or should have been delivered. The present case concerns the sale of electricity, which is a movable asset and which in this case was delivered in accordance with a contract to a customer in C2. This shows that the place of jurisdiction for the place of performance is the District Court of C2 and that the German courts possess international jurisdiction.
In accordance with Article 32 of the New Lugano Convention, for the purposes of the Convention, “judgment” means any judgment given by a court or tribunal of a State bound by this Convention, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court. The New Lugano Convention was applied to the order for payment procedure for defendant 1 domiciled in Switzerland.
Insofar as the order for payment procedure is directed against defendant 2, the ZPO (2) was applied.
A determination of the place of jurisdiction is also possible for the determination of the competent court. Article 36 ZPO is applicable to every procedure subject to the ZPO and also to the order for payment procedure. Pursuant to Article 36(2) ZPO, the Court of First Instance has jurisdiction for the determination procedure.
The Court of First Instance, having regard to considerations of expediency and procedural economy, designated District Court C as the common court with jurisdiction for the order for payment procedure on the ground that the dispute is locally related to C.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Zivilprozessordnung (Code of Civil Procedure).