Schleswig-Holsteinisches Oberlandesgericht; 2016-07-07; 5 U 84/15
Decision by national courts in the field of European Union law — ECLI:DE:OLGSH:2016:0707.5U84.15.0A
Date: 2016-07-07
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82016DE0707(51)_ENG_SUMJURE
JURE summary
JURE summary
Several private persons domiciled in Germany (hereinafter ‘the plaintiffs’) filed an action against the nation of Greece (hereinafter ‘the defendant’) seeking that the defendant perform its obligations or provide compensation for loss.
Through their credit institutions, the plaintiffs acquired government bonds issued by the defendant. In an attempt to curb the debt crisis, the Greek government adopted Act No 4050/2012 (hereinafter ‘the Government Bonds Conversion Act’) which led to a subsequent change of the bond conditions based on the decision of major creditors. The original bonds acquired by the plaintiffs were converted into bonds with a nominal value reduced by 53.5 %.
The Landgericht Itzehoe (hereinafter ‘the Court of First Instance’) found the action inadmissible. According to the Court of First Instance, it was not necessary to examine the question whether the German courts were holding international jurisdiction under Article 5(1)(a) or Article 5(3) of the Brussels I Regulation (1). Upon adopting the Government Bonds Conversion Act, the defendant acted in its capacity as a sovereign state and by issuing a ruling on the merits, the Court of First Instance would encroach upon the sovereignty of another Member State.
The appeal of the plaintiff filed with the Schleswig-Holsteinisches Oberlandesgericht (hereinafter ‘the Court of Appeal’) was not successful. The plaintiffs failed to appear at the hearing.
Prior to examining the international jurisdiction, a possible state immunity was to be looked into. The Government Bonds Conversion Act had been adopted within the legislative powers of the state and was therefore subject to state immunity. Contrary to the plaintiff’s opinion, the defendant had not acted in its fiscal capacity but as a sovereign entity. A unilateral change of contracting conditions would not have been possible in a purely civil relationship between private entities.
The Court of Appeal dismissed the appeal of the plaintiffs against the decision of the Court of First Instance by issuing a default judgment. A revision was found admissible as the Supreme Court had not dealt with a question of state immunity in similar circumstances as presented to the Court of Appeal. The Oberlandesgericht Oldenburg and Oberlandesgericht Köln (2) were of a different opinion. According to these courts, the defendant might not rely on state immunity if the plaintiffs were invoking claims for performance or compensation, citing that a legal relationship which had been originally of a civil nature may not be changed by later measures adopted by the state.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Oberlandesgericht Oldenburg, judgment of 18 April 2016 – 13 U 43/15, Oberlandesgericht Köln, judgment of12 May 2016 – 8 U 44/15.