OLG Stuttgart; 2014-01-27; 5 U 177/12
Decision by national courts in the field of European Union law — ECLI:DE:OLGSTUT:2014:0127.5U177.12.0A
Date: 2014-01-27
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82014DE0127(51)_ENG_SUMJURE
JURE summary
JURE summary
The insolvency administrator (hereinafter ‘the plaintiff’) of a limited liability company (GmbH), having its registered office in Germany (hereinafter ‘the insolvency debtor’), filed a claim for repayment of EUR 25,000 from the Managing Director (hereinafter ‘defendant 1’) of a management consultancy company with its registered office in Switzerland (hereinafter ‘defendant 2’).
The GmbH had paid defendant 2 for services which had not been provided. The invoices in the total amount of EUR 226_630.90 had only been issued fictitiously. Due to doubts regarding the liquidity of the defendant, the plaintiff first brought a partial action for the repayment of EUR 25,000. Defendant 1, in its capacity as managing director of defendant 2, had assisted the Managing Director of the insolvency debtor in his bankruptcy.
The Landgericht Heilbronn (hereinafter ‘the Court of First Instance’) dismissed the action. According to the plaintiff, it has not been sufficiently demonstrated that the invoices were issued fictitiously and that the defendants committed an offence.
By means of his appeal, the plaintiff seeks an order for the defendant repay jointly and severally the entire sum of EUR 226 630,90 after having amended his complaint. At first instance, a witness was not heard.
The Oberlandesgericht Stuttgart (hereinafter ‘the Court of Appeal’) granted the application.
The German courts have international jurisdiction under Article 5(3) of the new Lugano Convention (1). The tortious place of jurisdiction applies. The place of principal offence alleged by the plaintiff was the registered office of the insolvency debtor in Germany where the managing director of the insolvency debtor or her husband initiated the transfers in breach of duty and where the primary damage, being the reduction of the insolvency debtor’s assets, occurred. The fictitious invoices were issued in Switzerland with the aim of assisting to cause damage in Germany.
The international jurisdiction of the German courts is not affected by the submission of the choice of court agreement under Article 17 of the new Lugano Convention. This was done too late as the defendants submitted it for the first time to the Court of Appeal and did not provide any reasons within the meaning of Article 531 of the ZPO (2) which could justify the late submission.
The Court of First Instance made a procedural error in refraining from hearing the witness. The witness argued before the Court of Appeal in a comprehensible manner that defendant 2 had not made any payments for the insolvency debtor and that the invoices had only been drawn up fictitiously.
The Court of Appeal amended the judgment of the Court of First Instance and ordered the defendants to pay the plaintiff jointly and severally EUR 226 630,90 plus interest.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Zivilprozessordnung (Code of Civil Procedure).