BGH; 2016-06-07; KZR 6/15
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2016:070616UKZR6.15.0
Date: 2016-06-07
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82016DE0607(51)_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 acknowledging the disciplinary committee and stipulating 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. Her appeal lodged with the Oberlandesgericht München (hereinafter ‘the Court of Appeal’) was directed against defendant 2 and was successful to a certain extent. The Court of Appeal declared the award issued by the CAS not to be enforceable, stating that the German courts were not bound by this award.
The admissible revision filed by defendant 2 with the Bundesgerichtshof (hereinafter ‘the Supreme Court’) was successful.
The Court of Appeal was correct to assume that the German courts had international jurisdiction under Article 6(1) of the new Lugano Convention (1). The actions against both defendants were 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.
However, the Court of Appeal was not correct to state that the arbitration agreement, the validity of which was determined according to Article 27 and following of EGBGB (2), was invalid due to the breach of mandatory provisions of anti-trust law. It was true that defendant 2 had a monopoly in the relevant market of registration to world championships in speed skating and was therefore an entity having a dominant position on the market. However, under the arbitration agreement, the defendant and the plaintiff had the same influence over the composition of the award-issuing body of the CAS in the relevant dispute and were entitled to nominate one arbitrator.
Defendant 2 had not abused its dominant position on the market. The plaintiff agreed to the arbitration agreement of her own free will, thus effectively.
The Supreme Court annulled the partially final and partially interim judgment of the Court of Appeal to the extent where such decisions were unfavourable to defendant 2. The appeal of the plaintiff against the judgment of the Court of First Instance was dismissed as a whole.
(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).