OLG München; 2021-07-06; 5 U 710/20
Decision by national courts in the field of European Union law — ECLI:DE:OLGMUEN:2021:0706.5U710.20.00
Date: 2021-07-06
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82021DE0706(51)_ENG_SUMJURE
JURE summary
JURE summary
A debt collection agency founded by several investors for the purposes of a lawsuit (hereinafter ‘the plaintiff’) filed an action against a bank domiciled in Sydney, Australia (hereinafter ‘the defendant’) claiming compensation.
The defendant provided outside capital for increasing the volume of shares of an investment fund designated as the ‘S. fund’. The respective loan agreements were signed in London. The pension funds which provided the capital received tax certificates based on which they could claim from the German Federal Central Tax Office the repayment of the previously not withheld and deducted capital gains tax and solidarity surcharges amounting to EUR 462 million. The Federal Central Tax Office, however, refused to make the payment due to suspicion of organised fraud and organised tax evasion. The investors who assigned their rights to the plaintiff suffered a loss as a result.
The plaintiff expressed the opinion that the defendant played a central role in incurring the loss to the assignors. The assignors were not informed about the illegal cum-ex structure of the investment model. Both the international and local jurisdiction of the Landgericht München I (hereinafter ‘the Court of First Instance’), as the court seised, resulted from Articles 32, 21 or 23 of the ZPO (1) as the defendant had neither its statutory seat nor central administration or principal place of business within the territory of the EU. The defendant’s statutory seat and central administration were in Sydney.
According to the defendant, the international jurisdiction was subject to Article 4(1) of the Brussels I Regulation (recast) (2) due to its principal place of business being in London.
The Court of First Instance found the action inadmissible stating that the defendant had its place of business under Article 63(1)(c) of the Brussels I Regulation (recast) in London.
The appeal lodged by the defendant with the Oberlandesgericht München (hereinafter ‘the Court of Appeal’) was successful. The specific jurisdiction for tort under Article 32 of the ZPO was linked to the place of the tort. The place of the tort was identical to the place where the damage occurred and the place of the event giving rise to it. The Court of First Instance held jurisdiction regarding investors whose payments were made from their accounts maintained in Munich. The reduction of the balance on the accounts caused by a tortious act was to be considered the relevant loss for determining the place where the damage occurred. Regarding the other investors with accounts in different places in Germany or abroad, it was not evident that Munich would be the place where the damage occurred.
The Court of Appeal annulled the decision of the Court of First Instance and referred the case back for a new hearing and decision.
(1) Zivilprozessordnung. (Code of Civil Procedure).
(2) 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.