OLG Düsseldorf; 2018-03-01; I-16 U 83/17
Decision by national courts in the field of European Union law — ECLI:DE:OLGD:2018:0301.I16U83.17.00
Date: 2018-03-01
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82018DE0301(51)_ENG_SUMJURE
JURE summary
JURE summary
An owner of a private collection of African art domiciled in Germany (hereinafter ‘the plaintiff’) filed an action against an expert in the field of African tribal art (hereinafter ‘the defendant’) domiciled in Belgium claiming that he had been intentionally deceived and sought the return of a purchased sculpture against a refund of EUR 110,000.
Based on the agency agreement entered into between the plaintiff and the defendant, the defendant brokered against commission a sale of a sculpture from the plaintiff’s collection to one of his customers. Five years later, the plaintiff found out that the defendant was offering this very sculpture on a trade fair in Milan for EUR 750,000. In his defence, the defendant claimed that the customer had not accepted the sculpture eventually and that the defendant has subsequently taken the sculpture himself.
The Landgericht Düsseldorf (hereinafter ‘the Court of First Instance’) dismissed the action as inadmissible claiming its lack of international jurisdiction under Article 15(1)(c) of the Brussels I Regulation (1). Even though the plaintiff was presumed to be a consumer, the jurisdiction of the court was prevented by the fact that the defendant had pursued neither commercial nor professional activities in Germany and further that his activity as a gallerist had not been directed to Germany.
The admissible appeal of the plaintiff lodged with the Oberlandesgericht (hereinafter ‘the Court of Appeal’) was not successful.
The Court of First Instance correctly stated that the preconditions for the existence of jurisdiction in consumer contracts under Article 15(1)(c) of the Brussels I Regulation or Article 17(1)(c) of the Brussels I Regulation (recast) (2) had not been fulfilled. Even though the plaintiff was indeed a consumer, the defendant had not directed his activities to Germany. The conclusion of the respective agreement in Germany as the plaintiff’s country of residence had not been preceded by any explicit offer or an advert made by the defendant, nor had the defendant contacted the plaintiff in Germany by phone. The mere facts that the defendant informed about his activities in the field of African tribal art on a homepage with the top level domain ‘.com’ (3) and had an international dialling code before his phone number were not sufficient indications that he would direct his business activities internationally. His homepage was not to be found by a search engine. These facts indicate that the defendant wanted to keep his activities exclusive, not making them available for every person. In addition, the defendant had not taken part at any trade fairs or cultural events in Germany.
The Court of Appeal dismissed the appeal of the plaintiff against the judgment of the Court of First Instance.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(3) The same applies for the ‘.eu’ domain.