Brandenburgisches Oberlandesgericht; 2020-11-25; 7 U 147/19
Decision by national courts in the field of European Union law — ECLI:DE:OLGBB:2020:1125.7U147.19.00
Date: 2020-11-25
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82020DE1125(51)_ENG_SUMJURE
JURE summary
JURE summary
An insolvency administrator (hereinafter ‘the plaintiff’) filed an action against a joint-stock company domiciled in Copenhagen in Denmark (hereinafter ‘the defendant’) based on a shareholder resolution which he considered to constitute a binding letter-of-comfort type agreement.
The plaintiff was an insolvency administrator of a German airport operator (hereinafter ‘the debtor’). The defendant was the sole shareholder of the debtor. The annual meeting of the defendant decided to accept the obligation to assume liabilities of the debtor. After ascertaining the loss showed in the financial statements of the debtor, the plaintiff as the appointed insolvency administrator evaluated the claim against the defendant to the amount of EUR 780,000. With his action, the plaintiff demanded to be paid a first partial amount of EUR 100,000.
The defendant applied for the action to be dismissed claiming that German courts were not competent to sue the defendant in Copenhagen.
The Landgericht Frankfurt (hereinafter ‘the Court of First Instance’) found the action inadmissible stating that the defendant should be sued in the state of its domicile. The place of performance for the questionable obligation resulting from the respective letter-of-comfort type agreement was located at the statutory seat of the defendant.
The appeal of the plaintiff lodged with the Brandenburgisches Oberlandesgericht (hereinafter ‘the Court of Appeal’) was not successful.
The action was to be heard by Danish courts. There were no exceptions given to deviate from Article 4(1), Article 5(1), and Article 63(1) of the Brussels I Regulation (recast) (1).
Should the obligation to assume liabilities be considered as a defendant’s service for the debtor, the jurisdiction would be subject to Article 7(1)(b) of the Brussels I Regulation (recast), i.e. the courts holding jurisdiction would be courts according to the statutory seat of the defendant. Similarly, the place of performance regarding a mere financial obligation would establish the jurisdiction of Danish courts under Article 7(1)(b) of the Brussels I Regulation (recast).
The Court of Appeal dismissed the appeal of the plaintiff against the decision of the Court of First Instance.
(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.