OLG Hamm; 2020-03-19; I-32 SA 16/20, 32 SA 16/20
Decision by national courts in the field of European Union law — ECLI:DE:OLGHAM:2020:0319.32SA16.20.00
Date: 2020-03-19
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82020DE0319(51)_ENG_SUMJURE
JURE summary
JURE summary
The dispute dealt with by Oberlandesgericht Hamm (hereinafter ‘the Court of Appeal’) concerned the international and local jurisdiction in connection with a contract for the organisation of and carrying out opera performances in different places. The parties to the dispute were an artistic director domiciled in Switzerland (hereinafter the ‘defendant’) and a technical director domiciled in Germany (hereinafter the ‘plaintiff’).
The plaintiff was in charge of the technical elements regarding the production of the opera ‘Aida’. Eleven performances were scheduled at different places in Germany and in Austria. After the first performance in Halle, the remaining ten performances were cancelled. The plaintiff charged the defendant EUR 22.707 by issuing an invoice to the company ‘Q’ domiciled in Switzerland as requested by the defendant.
However, the defendant subsequently claimed to have acted in his position as the artistic director of the above company which had become insolvent in the meantime and made no further payments.  With his action filed with the Landgericht Essen (hereinafter ‘the Court of First Instance’), the plaintiff demanded that the defendant provide compensation of the expenses. The Court of First Instance found itself not to hold local jurisdiction and referred the case to the Court of Appeal asking for the determination of jurisdiction.
Both the international and local jurisdiction of the Court of First Instance resulted from the new Lugano Convention (1). Article 5(1)(a) of the new Lugano Convention stipulates that a person domiciled in a Contracting State may be sued in another Contracting State in matters relating to a contract in the courts for the place of performance of the obligation in question. Article 5(1)(b) of the new Lugano Convention specified the place of performance also for contracts for the provision of services. A contract for the organisation of and carrying out opera performances can be a contract for the provision of services under Article 5(1)(b) of the new Lugano Convention.
According to the established case-law of the Court of Justice of the European Union, it may not always be possible to determine the place of performance regarding the main performance under economic criteria. This was the case in this dispute as the opera performances were to be carried out at several different places. The relevant factor was the domicile of the party which was obliged to provide the services (2). If the domicile was in Germany, it was also possible to sue the ordering party living in Switzerland in Germany.
With regard to these facts, the Court of Appeal found the Court of First Instance to be the competent court to hear the case.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2)  Judgment of the Court of Justice of 11 March 2010, Wood Floor Solutions Andreas Domberger GmbH v Silva Trade SA, C-19/09, ECLI:EU:C:2010:137, paragraphs 30 to 33.