Bundesgerichtshof; 2020-10-06; XI ZR 371/18
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2020:061020BXIZR371.18.0
Date: 2020-10-06
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82020DE1006(51)_ENG_SUMJURE
JURE summary
JURE summary
A bank domiciled in Frankfurt am Main (hereinafter ‘the plaintiff’) filed an action against a consumer (hereinafter ‘the defendant’), who was domiciled in Dresden upon the opening of his bank account, due to his overdrawing of the account.
When the defendant relocated to Switzerland, he intended to terminate the business relationship with the plaintiff. However, his bank account showed a debit balance which the defendant refused to settle.
The Amtsgericht Dresden rejected the action as being inadmissible due to the lack of jurisdiction.
The appeal lodged by the plaintiff with the Landgericht Dresden was not successful.
The plaintiff pursued its claim further by filing a revision with the Bundesgerichtshof (hereinafter ‘the Supreme Court’). The Supreme Court stayed the proceedings and submitted two questions to the Court of Justice of the European Union regarding the interpretation of Article 15(1)(c) and Article 16(2) of the new Lugano Convention (1) in relation to the cross-border nature of the respective activities upon the conclusion of the contract. The Court of Justice of the European Union provided its opinion (2).
The second question did not require any further clarification.
The first question, however, remained unanswered. Three criteria needed to be fulfilled for Article 16 of the new Lugano Convention to be applicable. Firstly, one contracting party had to be a consumer. Secondly, a real contract had to be made between the consumer and the person pursuing its commercial or professional activities. And thirdly, the respective contract had to belong to one of the categories included in Article 15(a-c) of the new Lugano Convention.
The Court of Justice of the European Union found the first two preconditions to have been met in this case. However, it did not make any detailed comments as to whether the third precondition, which was the subject of the question submitted by the Supreme Court, had also been met.
The Supreme Court maintained the request for a preliminary ruling regarding the first question about the interpretation of Article 15(c) of the new Lugano Convention.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2)  Order of the Court of Justice of 3 September 2020, mBank S.A. v PA, C-98/20, ECLI:EU:C:2020:672, paragraphs 33 and 36.