BGH; 2017-02-09; IX ZR 9/16
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2017:090217UIXZR9.16.0
Date: 2017-02-09
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82017DE0209(54)_ENG_SUMJURE
JURE summary
JURE summary
A person domiciled in Germany conducting its activities through a Gesellschaft bürgerlichen Rechts type of company (Civil law company) (hereinafter ‘the plaintiff’) filed an action against two people managing a law firm in Switzerland and a law firm in the form of a joint-stock company under Swiss law, liable as a joint and severable debtor, which these managing lawyers later founded (hereinafter ‘the defendants’) seeking compensation for damage.
Based on the recommendation of plaintiff’s lawyers, the defendants provided legal representation of the plaintiff within insolvency administration proceedings in Switzerland regarding a Swiss asset management company (hereinafter ‘the company’) the plaintiff invested into on the basis of an offer which the plaintiff had previously accepted and undersigned. The place of jurisdiction was chosen according to the business address of the defendants to be Zürich.
In parallel to the proceedings in Switzerland, the plaintiff sued the members of the administrative board and directors of the company by the Landgericht Heilbronn seeking compensation for damage. The action was not successful due to the expiration of claims under Swiss law. The rights of the plaintiff, who had through the defendants given his consent to the agreement regarding the administration settlement, were not exercised properly towards co-debtors, guarantors and other liable persons due to the failure to meet the deadline for a declaration. Having regard to the loss of his rights, the plaintiff sought from the defendants compensation amounting to EUR 55_939.22.
The Landgericht Stuttgart (hereinafter ‘the Court of First Instance’) rejected the action stating the lack of international jurisdiction and the Oberlandesgericht Stuttgart (hereinafter ‘the Court of Appeal’) dismissed the appeal of the plaintiff.
The revision filed by the plaintiff with the Bundesgerichtshof (hereinafter ‘the Supreme Court’) was successful.
According to the Supreme Court, the Court of Appeal correctly stated that the international jurisdiction of the Court of First Instance followed from Article 64(2)(a) and Article 60(1) of the new Lugano Convention (1). The reasoning of the Court of Appeal that the place of jurisdiction for consumer matters under Article 15(1)(c) of the new Lugano Convention was not given in this case, however, cannot withstand further legal examination.
The defendants offered their professional activities as lawyers also in Germany.
Even though the websites of the defendants said little about offering their legal activities in Germany, according to the recent case-law of the Court of Justice of the European Union it is not necessary that a causal link must exist between the arrangement of the website and the conclusion of the agreement with a consumer.
It cannot be held against the plaintiff that he obtained the documents regarding the legal representation following the initiative of his own lawyers. It is not required that the initiative to conclude a specific agreement must stem from the defendants. A positive response from a professional upon being contacted by a consumer is sufficient. In addition, the facts of the case speak in favour of joint promotion concept of the plaintiff’s lawyers and the defendants.
The Court of Appeal had to examine whether the plaintiff was to be considered to be a consumer. If the plaintiff had concluded the investment agreement with the company solely to non-professional and non-commercial purposes, this fact would mean that he also had concluded the legal representation agreement to a non-professional and non-commercial purpose. It was not important whether the plaintiff had gained the financial means for the investment from his professional or commercial activities.
The Supreme Court annulled the decision of the Court of Appeal and referred the case back for a new hearing and decision.
(1) Übereinkommen über die gerichtliche Zuständigkeit und die Anerkennung und Vollstreckung von Entscheidungen in Zivil- und Handelssachen.