OLG Rostock; 2020-09-30; 2 U 6/17
Decision by national courts in the field of European Union law — ECLI:DE:OLGROST:2020:0930.2U6.17.00
Date: 2020-09-30
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82020DE0930(51)_ENG_SUMJURE
JURE summary
JURE summary
A manufacturer of sport boats domiciled in Germany (hereinafter the ‘plaintiff’) defended itself against alleged compensation claims of a defendant by filing an action demanding the issuance of a negative declaratory judgment.
The plaintiff concluded an agency agreement with a French company (hereinafter ‘defendant 1’) which was founded by two French members (hereinafter ‘defendant 2’ and ‘defendant 3’) with the contractual territory France. An employee and later the managing director of defendant 1 (hereinafter ‘defendant 4’) was removed from office as managing director of defendant 1 due to disagreements with defendants 2 and 3. In compliance with the terms of his agreement, defendant 4 transferred the shares he held in defendant 1 to defendants 2 and 3. Later, a French legal entity (hereinafter ‘defendant 5’) acquired all shares in defendant 1. Invoking the change-of-ownership provision contained in the agency agreement, the plaintiff terminated the agreement with defendant 1. The plaintiff concluded a contract of employment with defendant 4 and appointed him as regional sales manager for France among other countries.
Defendants 1, 2, 3 and 5 filed an action with the Commercial Court Toulon (France) claiming that the non-compete provision contained in the share purchase agreement was violated by defendant 4 and the plaintiff. As a response, the plaintiff filed an action demanding the issuance of a negative declaratory judgment.
The court seised under Article 7(2) of the Brussels I Regulation (recast) (1), the Landgericht Stralsund (hereinafter ‘the Court of First Instance’) found the action inadmissible and dismissed it stating that the German courts did not hold international jurisdiction with regard to defendants 1, 2, 3 and 5. The place where the damage occurred and the place of the event giving rise to it were in France. Defendant 4 could be sued only in specialised labour law courts.
The appeal of the plaintiff lodged with the Oberlandesgericht Rostock (hereinafter ‘the Court of Appeal’) was partially successful.
After the plaintiff withdrew its appeal against defendant 2, the Court of Appeal stated that the action was admissible in respect to defendants 1, 3 and 5. The contract of employment between the plaintiff and defendant 4 was concluded in Germany. Under Article 4(1) of the Rome II Regulation (2), French civil law was applicable to the dispute as the alleged damage occurred in France. The fact that the event giving rise to the damage, i.e. the employment of defendant 4 by the plaintiff, occurred in Germany was not relevant. An expert opinion was needed to examine whether, under French law, the fact that the plaintiff gained knowledge about the alleged violation of the non-compete clause by defendant 4 only after his employment was a sufficient reason to establish the plaintiff’s liability. The Court of Appeal annulled the decision with respect to defendants 1, 3 and 5 and referred the case back to the Court of First Instance for a new hearing and decision.
The Court of First Instance was correct to dismiss the action of the plaintiff against defendant 4 due to its inadmissibility. The reasons were, however, different than those stated by the Court of First Instance. The requirement for the presence of legal interest for the issuance of a declaratory judgment was missing as this depended on the fact of whether the conduct of defendant 4 towards the plaintiff had the character of an entitlement. This, however, was not the case in the dispute.
(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.
(2) Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II).