OLG Hamm; 2017-05-04; I-28 U 58/16
Decision by national courts in the field of European Union law — ECLI:DE:OLGHAM:2017:0504.28U58.16.00
Date: 2017-05-04
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82017DE0504(51)_ENG_SUMJURE
JURE summary
JURE summary
A private person domiciled in Germany (hereinafter ‘the plaintiff’) filed an action against two lawyers domiciled in Zürich, Switzerland (hereinafter ‘the defendants’) who were jointly managing a law firm in Switzerland, seeking compensation for damage.
The defendants provided legal representation of the plaintiff within insolvency administration proceedings regarding a financial services provider domiciled in Switzerland, with whom the plaintiff concluded an investment agreement relating to a Swiss asset management program. The plaintiff claimed that the defendants breached their duties under the agreement for the provision of legal services due to their omission to initiate anything with regard to a notice of the committee of creditors addressed to co-debtors, which had relevant legal consequences, resulting in a loss to the plaintiff.
Havin regard to the fact that the plaintiff concluded the agreement for the provision of legal services as a consumer, the German courts had international jurisdiction under Article 15 and 16 of the new Lugano Convention (1).
The defendants contested the jurisdiction of the seised Landgericht Arnsberg (hereinafter ‘the Court of First Instance’), claiming the that under the agreement they had concluded with the plaintiff, the exclusive jurisdiction was held by a court in the Zürich canton.
The Court of First Instance dismissed the action for being  inadmissible. In its opinion, it was not evident whether the defendants directed their professional activities within the meaning of Article 15 of the new Lugano Convention to Germany.
The appeal of the plaintiff filed with the Oberlandesgericht Hamm (hereinafter ‘the Court of Appeal’) was successful.
The plaintiff, having the burden of proof, managed to prove sufficiently that they are to be understood as a consumer. The defendants represented the plaintiff within the insolvency administration proceedings exclusively for his private purposes. Not only did he fund the failed investment from his private account, but the investment with an investment period of between 12 and 20 years was made with the intent to be his private retirement provision.
The defendants, who concluded the agreement for the provision of legal services acting in their professional capacity, directed their services also to Germany. The internet sites operated by the defendants stated that the defendants were providing their service in several foreign languages and the they also represent individuals and companies from abroad. It was not important in this case that the service itself had not been provided abroad and the plaintiff had no knowledge about the internet sites of the defendants owing to the fact that he commissioned the legal services based on the recommendation of his German lawyer.
The Court of Appeal annulled the decision of the Court of First Instance and referred the case back for a new hearing and decision.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.