OLG Saarbrücken; 2022-05-12; 4 U 81/21
Decision by national courts in the field of European Union law — ECLI:DE:OLGSL:2022:0512.4U81.21.00
Date: 2022-05-12
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82022DE0512(51)_ENG_SUMJURE
JURE summary
JURE summary
The defendant, a public limited company registered in Luxembourg, issued a high-yield bond in 2011.
The bonds were targeted to qualified investors and contained a disclaimer stating that the bonds would not be publicly issued in the Federal Republic of Germany and that any resale of the bonds may only be in accordance with the applicable law. Nonetheless, the bonds were de facto accessible to private investors on the German stock exchange as part of bond trading, i.e. the unregulated open market.
A German resident (hereinafter ‘the plaintiff’) acquired the bonds in 2014 through an intermediary. In 2018, the plaintiff received a notice of implementation from the intermediary of the worthless derecognition of the bonds.
The plaintiff requested the defendant to repay his bonds’ initial investment amount, plus interests, to no avail.
The plaintiff then filed a criminal complaint for investment fraud before the Staatsanwaltschaft Saarbrücken Strafanzeige. The investigations were discontinued.
The plaintiff appealed the discontinuation order before the Landgericht Saarbrücken (hereinafter ‘the Court of First Instance’), claiming that German law applies and that the bonds were illegally sold to her as a private investor. The Court of First Instance dismissed the action as inadmissible due to the lack of international jurisdiction of the German courts.
The plaintiff lodged a second appeal before the Saarländisches Oberlandesgericht Saarbrücken (hereinafter ‘the Court of Appeal’). The Court of Appeal dismissed the appeal for lack of jurisdiction.
The Court of Appeal first denied jurisdiction based on Article 17(1) and Article 18(1) of the Brussels I Regulation (recast) (1). The plaintiff was asserting jurisdiction over its domicile-based contractual liability as a consumer.
The Court of Appeal reminded that the plaintiff, as an investor, had acquired the bonds from a third party acting in a professional or commercial capacity (intermediary). The intermediary is thus the formal holder of the rights against which the plaintiff could have lodged a claim.
The contractual connection of the private investor, i.e. the plaintiff, to the intermediary, and the latter’s connection to the issuer, i.e. the defendant, is insufficient to classify the defendant as an "other contracting party" pursuant to Article 17(1) of the Brussels I Regulation (recast). This aligns with the interpretation of Case C-375/13 (2).
The Court of Appeal also denied jurisdiction based on Article 7(1) of the Brussels I Regulation (recast). The court held that the defendant did not accept responsibility for the listing on the German Market, and the plaintiff could not claim a breach of information and control obligations or prospectus liability.
Furthermore, even as to assume an unlawful act by the defendant, the Court of Appeal denied tortious jurisdiction based on Article 7(2) of the Brussels I Regulation (recast). Such jurisdiction may exist for an action brought against the issuer of a certificate for prospectus liability and for breach of other information duties incumbent upon it, if the alleged damage occurs directly on a bank account held by the plaintiff with a bank within the jurisdiction of those courts as per the principle stated in paragraph 57 of Case C-375/13. The plaintiff failed to provide factual evidence to the Courts to assert her rights. Therefore, the Court of Appeal cannot draw jurisdiction as the place where the event which gave rise to the harm occurred (‘Handlungsort’), nor the place where the harm arose (‘Erfolgsort’) in the meaning of the aforementioned Article.
(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 (recast)
(2) Judgment of the Court of Justice of 28 January 2015, Harald Kolassa v Barclays Bank plc, C-375/13, ECLI:EU:C:2015:37.