OLG Nürnberg; 2018-10-31; 7 UF 617/18
Decision by national courts in the field of European Union law — ECLI:DE:OLGNUER:2018:1031.7UF617.18.00
Date: 2018-10-31
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82018DE1031(52)_ENG_SUMJURE
JURE summary
JURE summary
A German national with a habitual residence in France (hereinafter ‘the plaintiff’) requested the repayment of an amount of EUR 83 000 from his former wife, a German national with a habitual residence in France (hereinafter ‘the defendant’).
After their separation, the defendant had misused the power of attorney granted to her by the plaintiff during the marriage to dispose of his bank account and had emptied the account.
The defendant contested the international jurisdiction of the German courts and claimed that the defendant had her habitual residence not in Germany but in France.
With the final decision, the Amtsgericht Nürnberg (hereinafter ‘the Court of First Instance’) decided, after the defendant had not appeared at the hearing concerning the judgment by default, that the defendant was obliged to pay back the amount of EUR 83 000 to the plaintiff.
The defendant filed a complaint against the final decision of the Court of First Instance at the Oberlandesgericht Nürnberg (hereinafter ‘the Court of Appeal’).
The international jurisdiction of the German courts resulted from Article 7(2) of the Brussels I Regulation (recast) (1).
In this case, a person may be sued in the courts for the place where the harmful event occurred. This condition was fulfilled. The execution of the transfer request in Germany shall be deemed to be the harmful event. This order was issued to a German bank for an account held in Germany and executed by a German bank in Germany. In addition, the transfer initiated by the defendant was made to another German bank.
The substantive claim of the plaintiff must be assessed under German law. This follows from Article 4(1) of the Rome II Regulation (2). According to that Article, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs. Although Article 4(2) of the Rome II Regulation provides that French law may also be applied, since the plaintiff was habitually resident in France on the date on which the pecuniary loss occurred, it may be clear from the circumstances of a specific case that a manifestly closer connection with another state may arise in particular from an existing legal relationship between the parties closely connected with the tort. It is a matter of so-called accessory linkage to existing legal relationships (3). In this specific case it is Germany.
The Bundesgerichtshof (Supreme Court) had already ruled several times in the past that a spouse who, after the separation, uses an account power of attorney granted to him before the separation from the other spouse against the will of the principal has to compensate the resulting financial loss.
When the cohabitation of the spouses ends, so does the basis for business relations (e.g. account power of attorney).
The appeal of the defendant was rejected by the Court of Appeal. The defendant was obliged to reimburse the plaintiff the amount of EUR 83 000 as damages.
(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).
(3) Article 4(3) of the Rome II Regulation.