BGH; 2017-07-06; IX ZR 38/16
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2017:060717UIXZR38.16.0
Date: 2017-07-06
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82017DE0706(51)_ENG_SUMJURE
JURE summary
JURE summary
The case dealt with by the Bundesgerichtshof (hereinafter ‘the Supreme Court’) concerned the international jurisdiction for consumer contracts in a dispute regarding a Swiss law firm which directed its activities to Germany.
The parties to the dispute were defendant 1 and defendant 2, Swiss attorneys managing a law firm, defendant 3, a law firm established by defendant 1 and 2 having the form of a joint-stock company established under Swiss law (hereinafter ‘the defendants’) and a plaintiff domiciled in Germany. The plaintiff sued the defendants seeking compensation for damage due to mistakes in the provided legal services.
Based on an asset management agreement, the plaintiff invested money into an asset management company domiciled in Switzerland which was offering its investment products in Germany without having the necessary licence. The plaintiff commissioned her attorneys to retrieve the money invested. These attorneys had been cooperating with the law firm of the of the defendants for several years and asked them whether they could represent the plaintiff in the insolvency administration proceedings. Subsequently, the plaintiff instructed the defendants to register her claim within these proceedings and to represent her at creditor meetings. The plaintiff lost her claims due to a mistake of the defendants and sought compensation.
The Landgericht Ansbach (hereinafter ‘the Court of First Instance’) rejected the action due to a lack of international jurisdiction. The subsequent appeal of the plaintiff was dismissed by the Oberlandesgericht Nürnberg (hereinafter ‘the Court of Appeal’).
According to the Supreme court, jurisdiction for consumer contracts under Article 15(1)(c) of the new Lugano Convention (1) would be given if the plaintiff was consumer and the sued Swiss law firm directed its professional activities to Germany. In order to assess such a matter, it is decisive whether there had been objective indications that the business entity intended to do business with consumers in the country of residence of the respective consumer prior to the conclusion of an agreement with such consumer.
That the defendants directed their activities as lawyers also to Germany was indicated by the operation of their website in German and in English, by the fact that the website had been accessible in Germany and was offering legal representation and services for both individuals and legal entities from Switzerland and abroad, and contained statements asserting that the defendants were competent when dealing with international matters.
The Supreme Court annulled the judgment of the Court of Appeal and referred the case back for a new hearing and decision, including with respect to the costs of the revision proceedings, to the Court of Appeal.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.