OLG Stuttgart; 2021-01-15; 5 U 11/20
Decision by national courts in the field of European Union law — ECLI:DE:OLGSTUT:2021:0115.5U11.20.00
Date: 2021-01-15
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82021DE0115(51)_ENG_SUMJURE
JURE summary
JURE summary
A private person domiciled in Germany (hereinafter the ‘plaintiff’) filed an action against a company domiciled in Luxembourg, who was a provider of online payment services, (hereinafter the ‘defendant’) requesting compensation.
The plaintiff, who used his professional account with the defendant in connection with his activity as a trader for making millions-worth of payments, also made payments from this account to an online gambling company domiciled in Malta and Gibraltar. The plaintiff sought compensation from the defendant due to its alleged participation in enabling illegal online gambling.
When making his claim, the plaintiff did not rely on a violation of a contractual obligation as for these cases, the General Terms and Conditions for Use of the account stipulated the jurisdiction of the English courts. According to the plaintiff, the ban on providing payments for illegal online gambling games resulted from the German State Treaty on Gambling.
The Landgericht Ulm (hereinafter ‘the Court of First Instance’) upheld the action and ordered the defendant to pay the demanded compensation. Its international and local jurisdiction followed from Article 7(2) of the Brussels I Regulation (recast) (1). The jurisdiction, however, solely applied to the examination of claims of the plaintiff arising out of torts or delicts conducted by the defendant. The German courts did not hold jurisdiction over contractual matters.
The appeal of the defendant lodged with the Oberlandesgericht Stuttgart (hereinafter ‘the Court of Appeal’) related not only to the merits of the case, but also to the contested international jurisdiction of the German courts in relation to torts and delicts.
The jurisdiction for consumer matters on the part of the German courts could be excluded due to the fact that the plaintiff used his account mainly for his professional activity. In addition, the jurisdiction agreed in the contract was also not in Germany.  The international jurisdiction of the German courts for torts could follow from Article 7(2) of the Brussels I Regulation (recast). Whereas the case-law of the Court of Justice of the European Union stipulated that the courts holding the jurisdiction for torts could not deal with claims regarding contractual matters, it was not clear whether courts holding the jurisdiction for contractual matters could also deal with claims arising out of tortious conduct.
The Court of Appeal stayed the proceedings and submitted the following question to the Court of Justice of the European Union for interpretation:
1. Is a claim based on a tort to be qualified as a contractual claim under Article 7(1) of the Brussels I Regulation (recast) if the claim based on a tort competes in some way with the contractual claim and where the existence of the tortious claim does not depend on the interpretation of the contract?
2. If the answer to the first question is negative, where is the place where the damage occurred under Article 7(2) of the Brussels I Regulation (recast) to be located in the case where a provider of payment services electronically sent money from the account of a client to the receiving account of a gambling games company maintained with the same provider of payment services and where the participation of the provider of payment services in sending the money to the gambling games company could potentially represent a tortious conduct?
(1) 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.