BGH; 2017-02-09; IX ZR 10/16
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2017:090217UIXZR10.16.0
Date: 2017-02-09
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82017DE0209(55)_ENG_SUMJURE
JURE summary
JURE summary
The dispute concerns the international consumer jurisdiction on which the Bundesgerichtshof (hereinafter ‘the Supreme Court’) has ruled.
The case concerns a dispute between defendants 1 and 2, Swiss lawyers who operated a law firm, defendant 3, a law firm founded by defendants 1 and 2 in the form of a corporation under Swiss law (hereinafter ‘the defendants’), and a plaintiff resident in Germany.
The plaintiff, as partner and managing director, who operates a bakery as a limited partnership, invested money in an asset management company in 2007 having its headquarters in Switzerland which distributed its investment products in Germany without permission. He instructed his lawyers to retrieve the funds invested in Switzerland. In 2010, the Zurich District Court granted the asset management company a stay of bankruptcy. The plaintiff’s lawyers asked the defendants whether they could represent their client in the Swiss debt restructuring proceedings. After the plaintiff signed the necessary documents provided by his lawyers, the defendants accepted the offer. The contracting parties agreed on the defendant's place of business in Zurich as the place of jurisdiction.
The plaintiff failed to claim damages from those responsible for the company because all claims for damages of the plaintiff were exhausted according to the case-law of the Supreme Court. The plaintiff now demands compensation from the defendants for the loss of these claims.
The Landgericht Ellwangen (hereinafter ‘the Court of First Instance’) dismissed the claim for lack of international jurisdiction and the Oberlandesgericht Stuttgart (hereinafter ‘the Court of Appeal’) dismissed the plaintiff's appeal. With its revision, the plaintiff aims to achieve the conviction of the defendants.
The jurisdiction of the German courts only applies if the lawyer's contract is to be classified as a consumer contract within the meaning of Article 15 of the new Lugano Convention (1). The choice of forum under Article 16(1) of the new Lugano Convention therefore takes precedence and the choice of forum agreement is invalid because it was not concluded after the dispute arose. The Supreme Court considers that the consumer jurisdiction under Article 15(1)(c) of the new Lugano Convention applies if the plaintiff is a consumer within the meaning of that provision.
The Supreme Court decided to set aside the contested judgment of the Court of Appeal and refer the case back to the Court of Appeal. The Court of Appeal should determine whether the plaintiff is a consumer within the meaning of Article 15 of the new Lugano Convention.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.