OLG Frankfurt; 2017-09-27; 13 U 217/15
Decision by national courts in the field of European Union law — ECLI:DE:OLGHE:2017:0927.13U217.15.00
Date: 2017-09-27
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82017DE0927(51)_ENG_SUMJURE
JURE summary
JURE summary
The plaintiff made several investment payments to a company that did not have a permit to provide asset management services. He participated in several proceedings to receive his invested funds back, one of them was a legal action against former directors and officers of this company. However, he was not successful as he did not meet the formal requirements provided by Swiss law. The plaintiff seeks damages from the defendants as his attorneys for the loss of these claims because of a breach of duty. Even though the attorney mandate contained a clause placing the exclusive international jurisdiction in Switzerland, the plaintiff argued that German courts have international jurisdiction under the consumer protection provisions of the new Lugano Convention (1).
Landgericht Darmstadt (hereinafter ‘the Court of First Instance’) denied its international jurisdiction and dismissed the action as inadmissible on this basis alone. It argued that its jurisdiction could be based only on the special jurisdiction clause for consumer contracts pursuant to Articles 16(1) and 15(1)(c) of the new Lugano Convention, which places the international jurisdiction based on the domicile of the consumer. The court argued that the conditions are not met as the defendants had not “directed” their professional activity to Germany within the meaning of that provision. Neither the design of the defendant’s website nor the communication between parties allowed this conclusion.
The plaintiff filed an appeal and the Oberlandesgericht Frankfurt am Main (hereinafter ‘the Court of Appeal’) considered the appeal well founded concluding that the Court of First Instance had international jurisdiction. The attorney agreement concluded by the plaintiff with the defendants fell within the scope of their professional activities, which they had directed not only to Switzerland but also to several other countries, including Germany. On their website, which was written in German and English, the defendants advertised their comprehensive language skills and international competence. They also pointed out that they also represent persons from abroad and provided their contact details, including the international area code and country code. The fact that the plaintiff concluded the attorney’s contract with the defendants ultimately on the basis of advice and recommendation from his German lawyers changes nothing of this conclusion. The Court of Appeal also analysed whether the plaintiff really acted as a consumer. It found that the plaintiff concluded that attorney agreement with the defendants solely for nonprofessional and non-commercial purposes because the agreement did not contain anything specific to his professional and commercial activities. This can be supported by the fact that the investment was to expire after 25 years and thus at a point in time when the plaintiff would reach the age of 61, which objectively indicates that it was part of his or her private pension provision.
The last important takeaway is that the Court of Appeal concluded that the international jurisdiction will also apply to third defendant – the result of a merger of the attorney offices. This company was only established after the conclusion of the attorney contract. However, according to the plaintiff’s submission, it is jointly and severally liable with the defendants under Swiss law. Thus, the jurisdiction rule also applies to it since it is irrelevant whether the consumer sues the other party to the contract or a successor in title to the other party.
Based on all these reasons the Court of Appeal has abolished the decision of the Court of First Instance and referred the case back to it for continuation in the proceedings.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.