LG Flensburg; 2015-06-24; 2 O 133/13
Decision by national courts in the field of European Union law — ECLI:DE:LGFLENS:2015:0624.2O133.13.00
Date: 2015-06-24
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82015DE0624(52)_ENG_SUMJURE
JURE summary
JURE summary
A private person domiciled in Germany (hereinafter ‘the plaintiff’) filed an action against a bank domiciled in Ireland (hereinafter ‘the defendant’) seeking the rescission of an investment in a close-end media fund upon the revocation of the underlying loan agreement. The plaintiff requested to be refunded an amount exceeding EUR 43,000 against the concurrent transfer of all its rights regarding the respective stake in a film fund.
The plaintiff acquired a stake in a film fund by providing 53.2 % of the investment from his own sources and covering the remaining 46.8 % by a mandatory financing provided by the defendant by the means of a loan agreement. According to the fund prospectus, the respective interests and repayment of the loan were supposed to be covered annually using the excess liquidity created by the investment company.
After more than 8 years, the plaintiff sent a letter to the bank announcing the withdrawal from the mandatory financing scheme. The plaintiff claimed that the withdrawal was effective and the revocation period observed as the advice regarding the withdrawal possibilities contained in the prospectus had been faulty.
The Landgericht Flensburg (hereinafter ‘the Court of First Instance’) decided in favour of the action and rejected the counteraction made by the defendant.
The defendant lodged an appeal against the decision of the Court of First Instance arguing that the plaintiff had no unlimited right of withdrawal. In addition, the withdrawal was excluded under the principle of good faith and, in addition, time-barred.
The Court of Appeal concluded that the Court of First Instance held the international and local jurisdiction (1) under Article 24 Brussels I Regulation (2). The action was justified as the plaintiff had withdrawn from the loan agreement with the defendant effectively. The plaintiff’s right to withdraw from the agreement was neither extinguished nor time-barred.
Article 355(2)(1) and Article 355(3)(3) of the BGB (3) stipulate that the two week’s revocation period starts from the moment when the consumer received properly worded advice on his right of withdrawal. This was not the case in this dispute. The advice given by the defendant in the wording ‘The period begins at the earliest upon the receipt of this advice …’ was insufficient and misleading. The expression ‘at the earliest’ did not allow the consumer to ascertain the start of the period in a straightforward manner.
The Court of Appeal upheld the decision of the Court of First Instance.
(1) The jurisdiction could also follow from Article 16(1) second alternative or Article 5(1) of the Brussels I Regulation.
(2) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(3) Bürgerliches Gesetzbuch (the German Civil Code).