BGH; 2016-10-18; VI ZR 618/15
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2016:181016UVIZR618.15.0
Date: 2016-10-18
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82016DE1018(51)_ENG_SUMJURE
JURE summary
JURE summary
A private person domiciled in Germany (hereinafter ‘the plaintiff’) claimed damages from a private person domiciled in Switzerland (hereinafter ‘the defendant’) on the grounds of the illicit provision of financial services in Germany. The defendant was the sole shareholder and member of the board of a now liquidated joint stock company having its registered office in Liechtenstein (hereinafter ‘the Company’) and a subsidiary in Switzerland.
Through a neighbour of his, an insurance broker, the plaintiff entered into an investment advice   agreement with the Company in Switzerland regarding an investment amount of EUR 230,000 which the plaintiff transferred from his Swiss bank account to the Swiss account of the Company. As a result of their asset management, the plaintiff suffered some losses.
The Landgericht Ravensburg (hereinafter ‘the Court of First Instance’) dismissed the action citing its lack of international jurisdiction.
The Oberlandesgericht Stuttgart (hereinafter ‘the Court of Appeal’) affirmed the international jurisdiction under Article 5(3) of the new Lugano Convention (1), cancelled the decision of the Court of First Instance and referred the case back to the Court of First Instance for a new hearing. Even though the place where the harmful event occurred is not in Germany, as the harmful event in the form of the first financial loss occurred in Switzerland when the money was transferred, but due to the fact that the neighbour of the plaintiff was acting as an ‘extended hand’, it may be connected to Germany.
The defendant lodged an admissible revision with the Bundesgerichtshof (hereinafter ‘the Supreme Court’) seeking the restoration of the judgment of the Court of First Instance.
The Supreme Court did not agree with the argumentation of the Court of Appeal, claiming that the German courts were lacking international jurisdiction as the place of the harmful event was not in Germany.
According to the findings of the Court of Appeal, the defendant himself had not been active as wrongdoer in Germany, but solely in Switzerland. If the Court of Appeal wanted to ascribe the actions of the plaintiff’s neighbour to the defendant, this would have been contrary to the case-law of the Court of Justice of the European Union (2). Article 5(3) of the Brussels I Regulation, having the same wording as Article 5(3) of the new Lugano Convention (4), shall be interpreted in that way that the place of an action being held against one of the alleged wrongdoers (neighbour of the plaintiff), who is not a party to the dispute, does not give rise to court jurisdiction relating to another alleged wrongdoer (defendant) who conducted his actions outside the district of the court seised.
In addition, the judgment of the Court of Justice of the European Union states that it is necessary that the wrongdoer himself, not a third person on his behalf, must be the person who made the relevant action in the district of the court seised.
The Supreme Court annulled the judgment of the Court of Appeal.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Judgment of the Court of Justice of 16 May 2013, Melzer against MF Global UK Ltd., C-228/11, ECLI:EU:C:2013:305.
(3) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(4) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.