BGH; 2017-02-09; IX ZR 103/16
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2017:090217UIXZR103.16.0
Date: 2017-02-09
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82017DE0209(53)_ENG_SUMJURE
JURE summary
JURE summary
The case decided by the Bundesgerichtshof (hereinafter ‘the Supreme Court’) concerned international jurisdiction for consumer contracts.
The plaintiff, who was an independent dentist living and working in Germany (hereinafter ‘the plaintiff’), made investments through an asset management company domiciled in Switzerland since 2001 which conducted its activities in Germany without the necessary licence. In 2008, the plaintiff commissioned her lawyers to retrieve the money she had invested in Switzerland.
The District Court Zürich approved in 2010 a moratorium for the in the meantime insolvent asset management company. The lawyers of the plaintiff asked defendant 1, who was managing a Swiss law firm together with defendant 2, to represent the plaintiff within the proceedings in Switzerland. After the plaintiff signed the necessary documents, defendants 1 and 2 accepted the offer. The parties agreed on Zürich as the place of jurisdiction. In June 2011, defendants 1 and 2 founded a law firm having the form of a joint-stock company under Swiss law, defendant 3 (hereinafter ‘the defendants’).
The plaintiff filed an action with the Landgericht Magdeburg (hereinafter ‘the Court of First Instance’) against the board members and directors of the asset management company claiming compensation for damage. The action was unsuccessful due to the extinguishment of plaintiff’s claims under Swiss law. Subsequently, the plaintiff demanded compensation for the loss of her claims from the defendants. The Court of First Instance rejected the action stating a lack of international jurisdiction. The appeal of the plaintiff lodged with the Oberlandesgericht Naumburg (hereinafter ‘the Court of Appeal’) was dismissed. The plaintiff pursued its claim further by filing a revision.
According to Article 15 of the new Lugano Convention (1), the German courts could hold jurisdiction if the agreement regarding the provision of legal services had been concluded with the plaintiff as a consumer. If this had been the case, the selected place of jurisdiction under Article 16(1) of the new Lugano Convention would take precedence over the agreement on the place of jurisdiction due to the fact that such agreement had been concluded prior to the occurrence of the dispute and not after. The Supreme Court expressed the opinion that the place of jurisdiction for consumer matters was given under Article 15(1)(c) of the new Lugano Convention provided that the plaintiff was a consumer.
The Supreme Court annulled the contested decision of the Court of Appeal and referred the case back to the Court of Appeal requesting the Court of Appeal to examine whether the plaintiff was a consumer under Article 15 of the new Lugano Convention.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.