OLG Schleswig-Holstein; 2023-01-30; 16 U 47/22
Decision by national courts in the field of European Union law — ECLI:DE:OLGSH:2023:0130.16U47.22.00
Date: 2023-01-30
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82023DE0130(51)_ENG_SUMJURE
JURE summary
JURE summary
The managing director (hereinafter ‘the plaintiff’) of an English limited liability company (hereinafter ‘the assignor’) asserted the claims assigned to him by the assignor against a French company (hereinafter ‘the defendant’).
The assignor and the plaintiff himself arranged for the defendant to acquire shares in a limited liability company based in Lübeck. The defendant objected to the remuneration charged by the assignor for its activities in acquiring the shares in the German GmbH as being too high and did not pay any remuneration to the assignor. The plaintiff requested that the defendant be ordered to provide him with information about the purchase price for the shares in the German GmbH and to pay him the remuneration to which he was entitled based on the purchase price.
The defendant requested that the action be dismissed on the grounds of inadmissibility. This follows from the jurisdiction agreement in Article 8 of both the written contract and the written draft contract. A French court is claimed to have jurisdiction.
The Landgericht Lübeck (hereinafter 'the Court of First Instance'), seised pursuant to Article 7(1) of the Brussels I Regulation (1), dismissed the action as inadmissible. The assignor and the defendant had concluded a valid jurisdiction agreement, which was also binding for the plaintiff as the assignor.
An appeal lodged with the Schleswig-Holsteinischen Oberlandesgericht (hereinafter ‘the Court of Appeal’) was unsuccessful.
The Court of First Instance assumed that it lacked jurisdiction. However, it is not a French court that has jurisdiction, but the Court of First Instance. In the present case, the parties did not agree on the conclusion of a contract which should contain the corresponding jurisdiction agreement pursuant to Article 25 of the Brussels I Regulation. The mere submission of a draft contract, which also contains a provision on the place of jurisdiction, does not constitute an implied contract.
For all claims arising from service contracts, the place of performance is to be determined uniformly according to the contractual performance in accordance with Article 7(1)(b) of the Brussels I Regulation. In the present case, the activity of the assignor or the plaintiff in connection with the acquisition of the German GmbH by the defendant is characteristic of the contract. It emerged from the oral hearing that the plaintiff formally relocated his activities vis-à-vis business partners to England, but carried them out from his place of residence in Karlsruhe, where the assignor's dependent branch office had its registered office.
By dismissing the plaintiff's appeal, the Court of Appeal set aside the judgement of the Court of First Instance and referred the legal dispute to the Landgericht Karlsruhe on the plaintiff's alternative claim.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.