OLG München; 2015-01-15; U 1110/14 Kart
Decision by national courts in the field of European Union law — ECLI:DE:OLGMUEN:2015:0115.U1110.14KART.0A
Date: 2015-01-15
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82015DE0115(52)_ENG_SUMJURE
JURE summary
JURE summary
An internationally successful speed skater (hereinafter ‘the plaintiff’) filed an action against the national German Speed Skating Association seated in Munich (hereinafter ‘the defendant 1’) and the International Skating Union seated in Switzerland (hereinafter ‘the defendant 2’) seeking a declaration, payment and compensation for damage.
Prior to her participation at the world championship in Norway, the defendant signed a registration form pre-formulated by defendant 2 giving rise to the competency of disciplinary committee and recognising the Court of Arbitration for Sports seated in Lausanne, Switzerland (hereinafter ‘the CAS’) as the arbitration court for the issuance of final and binding arbitration awards with the complete exclusion of general courts.
Based on a positive blood doping control, both defendants penalized the plaintiff. The CAS dismissed the appeal of the plaintiff.
The Landgericht München (hereinafter ‘the Court of First Instance’) dismissed the action. The plaintiff accepted the dismissal of her action against defendant 1 and her appeal lodged with the Oberlandesgericht München (hereinafter ‘the Court of Appeal’) was directed solely against defendant 2.
The appeal and the action itself are inadmissible to the extent in which they concerned the declaration sought regarding the unlawfulness of the imposed doping ban. An admissible subject-matter of a declaratory judgment can only be the existence or non-existence of a legal relationship.
Apart from that, the action is admissible, but not ready for judgement as yet.
The German courts have international jurisdiction under Article 6(1) of the new Lugano Convention (1). The action against both defendants was based on the same factual and legal situation, and therefore, a close connection between the actions existed. The international jurisdiction against defendant 2 continues to exist even if the dismissal of the action against defendant 1 became final.
The arbitration agreement, the validity of which is determined according to Article 27 and following of EGBGB (2), is invalid due to the breach of mandatory provisions of anti-trust law. Defendant 2 has a monopoly in the relevant market of registration to world championships in speed skating, and therefore is an entity having a dominant position on the market. It is forbidden to such entities to request remuneration or other commercial conditions that would differ from such conditions which would be present within a functioning market competition.
That an organizer of international sport events requests the conclusion of an arbitration agreement is not in itself an abuse of the market power.
In this case, however, it was proved the rules for the composition of the CAS board, where the defendant 2 had the crucial decisive powers, led to a structural prevalence of associations, thus casting doubts on the neutrality of the CAS.
The award made by the CAS is not fit for recognition and the German courts are not bound by this award.
A revision is admissible due to the fact that the importance of the decision reaches beyond the individual case dealt with and concerns the permissibility of arbitration agreements in international sport in general. It is therefore of substantial importance.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Einführungsgesetz zum Bürgerlichen Gesetzbuche (Introductory Act to the Civil Code).