OLG Hamm; 2019-11-21; 34 U 175/18
Decision by national courts in the field of European Union law — ECLI:DE:OLGHAM:2019:1121.34U175.18.00
Date: 2019-11-21
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82019DE1121(51)_ENG_SUMJURE
JURE summary
JURE summary
An asset management company domiciled in Germany (hereinafter the ‘plaintiff’) filed an action against a Swiss private bank (hereinafter the ‘defendant’) demanding compensation resulting from the violation of a contract and tortious conduct of the defendant relating to advice it gave the plaintiff regarding the plaintiffs’ participation in a fund.
The plaintiff distributed through the defendant prospects and investment offers. The plaintiff opened an account with the defendant. The general terms and conditions, enclosed to the application for opening an account, stipulated that the relationships between the parties were subject to Swiss law and the place of performance and place of jurisdiction for foreign clients was Basel or the court according to the branch of the defendant. The plaintiff did not contest the provision of the general terms and conditions. The plaintiff, who had transferred up to EUR 6 million to an established account, did not agree with the business model of the defendant, considering it fraudulent and to be to the detriment of its property, citing intentional unethical conduct on the part of the defendant.
According to the plaintiff, the Landgericht Paderborn (hereinafter ‘the Court of First Instance’) held the international jurisdiction under Article 15(1)(c) of the new Lugano Convention (1) due to the position of the plaintiff as a consumer.
The Court of First Instance dismissed the action citing its inadmissibility as no consumer character of the matter could be established. The special protection reserved for consumers was intended solely to end-users who were individuals.
The appeal lodged by the plaintiff with the Oberlandesgericht Hamm (hereinafter ‘the Court of Appeal’) was not successful.
The Court of Appeal confirmed the opinion of the Court of First Instance that a company constituted under German civil law (GbR) was not an individual but a legal entity. The term consumer was to be interpreted very narrowly, stating this was also supported by the established jurisdiction of the German Federal Court of Justice and the Court of Justice of the European Union.
The Court of Appeal dismissed the appeal of the plaintiff against the decision of the Court of First Instance.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.