OLG München; 2016-03-16; 15 U 2342/15 Rae
Decision by national courts in the field of European Union law — ECLI:DE:OLGMUEN:2016:15U2342.15RAE.0A
Date: 2016-03-16
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82016DE0316(52)_ENG_SUMJURE
JURE summary
JURE summary
A private person domiciled in Germany (hereinafter ‘the plaintiff’) filed an action against two lawyers domiciled in Switzerland and a law firm in the form of a joint-stock company also, which was also domiciled in Switzerland (hereinafter ‘the defendants’), seeking compensation for damage.
The plaintiff concluded an asset management agreement with an asset management company domiciled in Switzerland (hereinafter ‘the MWB AG’).
The defendants provided legal representation for the plaintiff within later insolvency administration proceedings regarding the insolvent MWB AG. The claims of the plaintiff were extinguished under the Swiss Federal Act on Debt Enforcement and Insolvency. This was caused by the negligence of the defendants who failed to offer to transfer the respective claims for consideration, thus incurring a loss to the plaintiff.
The Landgericht München I (hereinafter ‘the Court of First Instance’) considered the action to be inadmissible citing the lack of jurisdiction of the German courts.
The plaintiff pursued its claim further by filing an appeal with the Oberlandesgericht München (hereinafter ‘the Court of Appeal’).
The defendants claimed that the international jurisdiction of the German courts was prevented due to the fact that the they had not been directing their business activities to Germany upon the conclusion of the agreement and that the plaintiff was not a consumer.
The Court of Appeal, however, found that the German court were competent under Article 15(1)(c) and Article 16(1) second alternative of the new Lugano Convention (1).
The burden of proof regarding the status as a consumer was an obligation of the plaintiff. The plaintiff claimed that she had entered into the agreement for the provision of legal services as a consumer and that the investment concerned solely her private life.
The jurisdiction of the German courts also followed from the second precondition. The defendants directed their activities also to Germany. Under Article 15(1)(c) of the new Lugano Convention, it was not necessary for such activities to be expressly offered or promoted in Germany. It was sufficient if the contracting party directed its activities to other Member States ‘by any means’, a term including a broad range of activities. The causality between directing the services and the conclusion of the agreement was not necessary.
This was the case in this dispute.
The defendants were using a top-level domain ‘.com’. According to the case law of the Court of Justice of the European Union, using such domain is an indication that the services offered are directed internationally. The phone number were stated including an international dialling code and post address contained the international abbreviation ‘CH’. The website of the defendants informed that the lawyers had extensive knowledge of foreign languages and even experience with legal representation of injured clients of the MWB AG within cooperation with a German law firm. The defendants were recommended to the plaintiff by a German law firm.
The Court of Appeal annulled the decision of the Court of First Instance.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.