Bundesgerichtshof; 2017-02-09; IX ZR 67/16
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2017:090217UIXZR67.16.0
Date: 2017-02-09
Subject matter: Lugano Convention
Origin: Germany

82017DE0209(51)_ENG_SUMJURE
JURE summary
JURE summary
A natural person from Germany (hereinafter the "plaintiff") sued for compensation defendant 1, 2 and 3 (hereinafter the "defendants"), who led a law firm in Switzerland.
In a succession proceedings in Switzerland running in parallel, the defendants reported the plaintiff‘s claims against a Swiss company (an asset management company). The plaintiff also made these claims in Germany. However, his claims were dismissed because, represented by defendant 1, he did not use his rights within the set period and did not offer the assignment of his claims for payment.
The Landgericht München (hereinafter the "Court of First Instance") rejected the action due to a lack of international jurisdiction. At the plaintiff’s appeal, the Oberlandesgericht München (hereinafter the "Court of Appeal") annulled the judgement of the Court of First Instance and decided by an interim judgement that the German courts were competent.
By the appeal on points of law, which the Court of Appeal approved, the defendants sought to restore the judgement of the Court of First Instance.
The Bundesgerichtshof ("Federal Supreme Court"; hereinafter "BGH") did not decide in favour of the appeal on points of law.
The Court of Appeal has correctly determined the jurisdiction over a consumer contract according to Article 15(1)(c) of the New Lugano Convention (¹). The plaintiff is a consumer because, as a private individual, he has concluded an asset management contract with the company and the defendants have aligned their professional activities in Germany. The legal services contract is to be classified as a consumer contract within the meaning of the New Lugano Convention.
The defendants’ argument that the money, which the plaintiff invested, could originate from his undertakings and could not be taxed is irrelevant. The potentially criminally relevant origin of the money is not relevant for the intended use.
According to the defendant, it is also debatable whether they have aligned their activities in Germany, which is the main requirement to consider the matter as a consumer case. The internet site or other means that the defendants have used to register claims were not aimed at potential customers abroad.
The BGH leads that by a letter to the unnamed injured parties of the company of January 2011, defendant 1 offered an examination of the claims’ amounts and the representation of the interests in the creditors ' meeting for a price indicated in euro and has expressly pointed out the cross-border nature of this service.
It is clear from several means of evidence that the defendants have aligned their activities in foreign countries (including Germany).
The BGH has found the following principles:
1. The capital’s origin is irrelevant to the question whether a natural person concludes an asset management contract for non-professional and non-commercial purposes.
2. The subsequent conclusion of the contract between the consumer and the trader does not need to have been motivated by the activity of the company that is oriented towards the consumer’s state of residence.
3. A consumer does not lose the consumer jurisdiction by the fact that the contractual relationship on the part of his contractual partner passes to a third party after the conclusion of the contract.
The BGH rejected the defendants’ appeal on points of law against the judgement of the Court of Appeal.
(¹) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters