Bundesgerichtshof; 2020-05-12; XI ZR 371/18
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2020:120520BXIZR371.18.0
Date: 2020-05-12
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82020DE0512(51)_ENG_SUMJURE
JURE summary
JURE summary
A bank domiciled in Frankfurt am Main (hereinafter ‘the plaintiff’) filed an action against a consumer (hereinafter ‘the defendant’), who was domiciled in Dresden upon the opening of his bank account, due to his overdrawing of the account.
When the defendant relocated to Switzerland, he intended to terminate the business relationship with the plaintiff. However, his bank account showed a debit balance which the defendant did not settle.
The Amtsgericht Dresden rejected the action as being inadmissible due to the lack of jurisdiction.
The appeal lodged by the plaintiff with the Landgericht Dresden was not successful.
The plaintiff pursued its claim further by filing a revision with the Bundesgerichtshof (hereinafter ‘the Supreme Court’).
The success of the revision depended on the interpretation of Article 15(1)(c) and Article 16(2) of the new Lugano Convention (1). The international jurisdiction of the lower courts could solely follow from Article 5(1) of the new Lugano Convention as the defendant was domiciled in Switzerland when the action was filed, which prevented the international jurisdiction of German courts under Article 2(1) or Article 16(2) of the new Lugano Convention.
Therefore, the Supreme Court decided to stay the proceedings and submitted the following question to the Court of Justice of the European Union:
1. Is Article 15(1)(c) of the new Lugano Convention to be interpreted to that extent that ‘pursuing’ commercial or professional activities in the State of the consumer's domicile also includes a cross-border aspect on the part of the consumer's contracting counterparty upon the contract initiation and execution, or is the provision applicable solely in cases where both parties were domiciled in the same State bound by the Convention upon the execution of the contract and the cross-border aspect was established only after the consumer moved to a different State bound by the Convention?
2. If the cross-border aspect is not necessary upon the execution of the contract, do Article 15(1)(c) in connection with Article 16(2) of the new Lugano Convention generally exclude the determination of the competent court under Article 5(1) of the new Lugano Convention if the consumer moved to another State bound by the Convention in the time between the conclusion of the contract and the submission of the action or is it additionally necessary that the consumer's contracting counterparty pursue its activities in the state of the consumer's new domicile or directs them to this state?
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.