OLG Stuttgart; 2018-09-14; 5 U 98/17
Decision by national courts in the field of European Union law — ECLI:DE:OLGSTUT:2018:0914.5U98.17.00
Date: 2018-09-14
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82018DE0914(51)_ENG_SUMJURE
JURE summary
JURE summary
The owner of a pharmacy group domiciled in Germany (hereinafter ‘the plaintiff’) filed an action seeking payment of more than EUR 45 million concurrently against the retransfer of 45,000 shares in a fund from a private bank with its registered office in Switzerland (hereinafter ‘the defendant’).
The defendant managed several bank accounts with the group on behalf of the plaintiff through its branch in Germany and recommended that he invest in a fund. The fund generates income through legally tax-optimised dividend income. The subscription form designated the fund and included the statement that it was intended exclusively for qualified investors who had informed themselves regarding this investment based on the sales prospects. It provided for the plaintiff's obligation to subscribe to 50,000 shares in the fund for EUR 50 million. As agreed, the plaintiff received a loan of EUR 25 million from the defendant, which was first transferred to the bank account of a company in the group and then to a private account of the plaintiff.
However, the fund never received the subscription form because the defendant did not forward it to the fund. As an authorised representative, the defendant acquired the 50,000 shares in the fund in his own name on behalf of the plaintiff as the principal. The defendant charged the amount of EUR 50 million, including expenses, commission and stamp duty, to the plaintiff's private account.
In response to the claim of the plaintiff, 5,000 shares in the fund were redeemed against repayment.
The Landgericht Ulm (hereinafter 'the Court of First Instance') granted the plaintiff's application.
The defendants' appeal to the Oberlandesgericht Stuttgart (hereinafter ‘the Court of Appeal’) is admissible but not well founded.
The conditions for a stay of proceedings have not been met under Article 27(1) of the New Lugano Convention (1). The plaintiff brought the partial claim before the Court of First Instance prior to the defendant bringing his negative declaratory application before the District Court Z. in Switzerland.
By narrowly interpreting the term ‘consumer' in the context of the plaintiff's position within the investment advisory agreement, the Court of First Instance rightly concluded that the plaintiff is a consumer. The German courts therefore possess international jurisdiction under Article 15(1)(c) of the New Lugano Convention.
Under Article 6(1) of the Rome I Regulation (2), the investment advisory agreement is governed by German law as a consumer contract because the plaintiff has his habitual residence in Germany.
Contrary to the view of the defendant, the plaintiff is entitled because he is a contractual partner of the defendant. The source of the funds is therefore irrelevant.
An examination of the circumstances surrounding the establishment of the business relationship between the plaintiff and the defendant shows that they impliedly concluded an investment advisory agreement although no written version is available.
The defendant breached his obligations under the investment advisory agreement. A bank must provide information on all circumstances relevant to the investment business. The defendant did not prove that he examined the investment in the fund using the critical expertise that is customary in banking.
Due to the inaccurate recommendation of the defendant, the plaintiff had already been harmed by the acquisition of the fund shares and does not have to wait to see whether a tax refund, and a subsequent payment from the fund, will follow.
The Court of Appeal dismissed the defendants' appeal against the judgment of the Court of First Instance. The appeal is admissible.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).