OLG München; 2016-03-16; 15 U 2341/15 Rae
Decision by national courts in the field of European Union law — ECLI:DE:OLGMUEN:2016:0306:15U2341.15RAE.0A
Date: 2016-03-16
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82016DE0316(51)_ENG_SUMJURE
JURE summary
JURE summary
An independent musician and composer living in Germany (hereinafter ‘the plaintiff’) claimed compensation for damage against two attorneys-at-law domiciled in Switzerland and a law firm in the form of a joint-stock company which these attorneys later founded (hereinafter ‘the defendants’).
The defendants represented the plaintiff, based on their offer which had been accepted and undersigned by the plaintiff, in insolvency administration proceedings regarding a Swiss asset management company (hereinafter ‘the company’) the plaintiff invested into.
The plaintiff also filed a successful action against the director and president of the administrative board of the company with the Landgericht München (hereinafter ‘the Court of First Instance’) seeking compensation for damage. However, the Oberlandesgericht München (hereinafter ‘the Court of Appeal’) annulled the judgment stating that according to the Swiss Bundesgesetz über Schuldbetreibung und Konkurs (Federal Act on Debt Collection and Bankruptcy), any possible claims had ceased to exist. The reason was a mistake of the defendants as they had not offered the cession of the financial claim of the plaintiff against payment as they had been supposed to do, thus causing a loss to the plaintiff.
The Court of Appeal dismissed the action as inadmissible stating that the German courts were lacking international jurisdiction.
The appeal of the plaintiff lodged with the Court of Appeal was successful.
The international jurisdiction of the German courts was given under Article 15(1)(c) of the new Lugano Convention (1). The plaintiff entered into the legal representation agreement with the defendants as a consumer for a purpose which could not be attributed to his professional or commercial activities.
The legal representation agreement concerns the professional activities of the defendants, and they are active in a number of states including the state where the plaintiff is domiciled.
The provision regarding the place of jurisdiction for consumer matters under Article 15(1)(c) of the new Lugano Convention it so be interpreted in the same way as Article 15(1)(c) of the Brussels I Regulation (2). It is evident that the expression ‘by any means’ contained in this clause includes a wide range of activities.
The homepage of the defendants is accessible under a ‘.com’ address in German and English language, i.e. under a different top-level-domain than typical for Switzerland (‘.ch’). In addition, the telephone number presented on these websites had an international dialling code and the post address the abbreviation of the country (‘CH’).
The plaintiff was not obliged to prove the causal link between the arrangement of the website and the conclusion of the legal representation agreement with the defendant. Such link is not necessary for the determination of the place of jurisdiction for consumer matters.
In addition, the defendants sent a letter to further investors domiciled in Germany who suffered a loss and offered them legal representation within the proceedings pending in Switzerland.
Based on the appeal of the plaintiff, the Court of Appeal annulled the judgment of the Court of First Instance.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.