OLG Frankfurt; 2021-09-14; 9 U 77/19
Decision by national courts in the field of European Union law — ECLI:DE:OLGHE:2021:0914.9U77.19.00
Date: 2021-09-14
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82021DE0914(51)_ENG_SUMJURE
JURE summary
JURE summary
The plaintiff domiciled in Germany (hereinafter ‘the plaintiff’) filed an action against an entity domiciled in Switzerland (hereinafter ‘the defendant’) seeking the cancellation of three contractual relationships relating to the purchase of trees in Brazil as a financial investment, step by step against the retransfer of ownership of the trees. These contracts were to be categorised as distance contracts for financial services, which is why the plaintiff, as a consumer within the meaning of Article 15 of the New Lugano Convention (1), could cancel them under German law.
The Landgericht Frankfurt (hereinafter ‘the Court of First Instance’) upheld the action and ordered the defendant to repay the investment amount, citing that the plaintiff had effectively terminated the contracts.
The defendant lodged an appeal with the Oberlandesgericht Frankfurt (hereinafter ‘the Court of Appeal’), arguing that the agreed Swiss law applied and that the plaintiff therefore had no right of cancellation. It also emphasised that the contracts did not qualify as financial services within the meaning of German law.
The Court of Appeal followed the opinion of the Court of First Instance that German law was applicable to the contracts, as the plaintiff was a consumer and the contracts for the purchase of trees in Brazil had been concluded for the purposes of private investment. The agreement on the application of Swiss law pursuant to Article 6(2) of the Rome I Regulation (2) was invalid as it would have resulted in the plaintiff, as a consumer, being deprived of the right of cancellation under German law.
The Court of Appeal rejected the defendant’s argument that the contracts were covered by the exceptions in Article 6(4) of the Rome I Regulation, as they were rights in rem in immovable property in Brazil and German law therefore did not apply. The trees were to be regarded as raw materials that were withdrawn from commercial transactions and were not permanently attached to the property.
The Court of Appeal did not uphold the defendant’s argument that the trees were not financial instruments and stated that the purchase of the trees as part of an overall investment plan with regular payments constituted a service in connection with a financial investment. The defendant held out the prospect of a return of 6% or more, thereby supporting the categorisation of the contract as a financial service.
The Court of Appeal dismissed the defendant’s appeal against the judgement of the Court of First Instance.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).