OLG Stuttgart; 2015-12-22; 12 U 91/15
Decision by national courts in the field of European Union law — ECLI:DE:OLGSTUT:2015:1222.12U91.15.0A
Date: 2015-12-22
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82015DE1222(51)_ENG_SUMJURE
JURE summary
JURE summary
The case before the Oberlandesgericht Stuttgart (hereinafter ‘the Court of Appeal’) concerns the international jurisdiction of the German courts in the case of claims for damages against lawyers resident in Switzerland (hereinafter ‘the defendants’) on the grounds of breach of duty by a lawyer and orientation of their activities towards another Contracting State. The defendants worked as lawyers in a law firm in Switzerland. Among other things, they represented clients in so-called debt-rescheduling and restructuring proceedings under Swiss law. They also worked for several clients of another lawyer, including a German who lost his investment in a Swiss-based company (hereinafter ‘the plaintiff’). Even before the conclusion of the contract, the defendant maintained an Internet website in the German language where several pieces of information regarding the law firm were published. The recovery was not successful, and the plaintiff applied to the Landgericht Ellwangen (hereinafter ‘the Court of First Instance’) to order the defendants to pay damages.
The Court of First Instance dismissed the claim as internationally incompetent. He did not agree with the plaintiff that jurisdiction was derived from Article 15(1)(c) in conjunction with Article 16(1) of the new Lugano Convention (1). These provisions establish a so-called consumer jurisdiction under the conditions that the plaintiff is a consumer within the meaning of Article 15(1) of the new Lugano Convention and that the defendant's activities are geared towards that of a consumer. But that was not the case here. The plaintiff lodged an admissible appeal against this.
The Oberlandesgericht Stuttgart (hereinafter ‘the Court of Appeal’) rejected the appeal as unfounded. In its opinion, the defendant's activities were not directed at Germany for several reasons. Firstly, the concept of payment requires a goal-oriented activity and not merely so-called ‘doing business’. ‘Doing-Business’ is insufficient. The case concerns marketing activities of the entrepreneur with reference to the state of that of a consumer, and these were not sufficiently present. Secondly, the fact that one or more contracts have already been concluded with reference to the state of that of a consumer is not in itself sufficient. The defendant's Internet presence is also not sufficient, since the method of communication on the Internet by its very nature has a global reach. Thirdly, the Court of Appeal found that it could not be established that the defendants had directed a professional or commercial activity towards Germany. The criteria for this include all manifest expressions of a desire to attract consumers in that Member State as customers. In that case, it is irrelevant who initiated the conclusion of the contract and a causality of the advertising activity for the conclusion of the contract is also not required.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.