OLG Bamberg; 2018-10-31; 8 U 73/18
Decision by national courts in the field of European Union law — ECLI:DE:OLGBAMB:2018:1031.8U73.18.00
Date: 2018-10-31
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82018DE1031(51)_ENG_SUMJURE
JURE summary
JURE summary
A natural person domiciled in Germany (hereinafter ‘the plaintiff’) brought an action seeking the repayment of EUR 266_798.80 by the defendant domiciled in Luxembourg (hereinafter ‘the defendant’) who makes loans to private individuals and companies.
The plaintiff and the defendant concluded a loan agreement in 2006 whereby the purpose of the loan was neither discussed nor agreed upon. The amount claimed was an alleged overpayment made by the plaintiff.
According to the jurisdiction agreement, the loan agreement is governed by German law, with L.-Stadt being the place of jurisdiction. At the time of the conclusion of the agreement, the plaintiff was also a registered as a sole trader and operated a retirement home.
Since the plaintiff concluded the loan agreement as a consumer, he could bring an action at the place of jurisdiction of his domicile.
The defendant contested the plaintiff's consumer status under Article 17 of the Brussels I Regulation (recast) (1). The loan agreement related, at least in part, to the plaintiff's professional or commercial activity.
The Landgericht Schweinfurt (hereinafter ‘the Court of First Instance’) dismissed the action as inadmissible. The plaintiff could only bring forth the action in L.-Stadt. In addition, the applicant could not prove that he took out the loan as a consumer within the meaning of Article 17 of the Brussels I Regulation (recast).
The plaintiff's appeal to the Oberlandesgericht Bamberg (hereinafter ‘the Court of Appeal’) was successful.
Article 17 of the Brussels I Regulation (recast) presupposes that a contracting party has the status of a consumer acting within a framework other than his professional or commercial activity. The plaintiff and the defendant did not agree on the purpose of the loan. Without examining other circumstances of the case, it cannot be assumed that the applicant is not acting as a consumer.
The Court of First Instance wrongly considered that the applicant bears the burden of the production of evidence and proof of the alleged consumer status. The defendant must prove that the applicant is not acting as a consumer but in the context of his professional or commercial activity. However, the defendant did not comply with that obligation.
The conditions of Article 17(1)(c) of the Brussels I Regulation (recast) are also met. The commercial activities of the defendant are also directed at private customers in Germany.
The Court of Appeal overturned the judgment of the Court of First Instance and referred the case back to the Court of First Instance for another hearing and decision.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.