BGH; 2017-05-30; IX ZR 73/16
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2017:300517BIXZR73.16.0
Date: 2017-05-30
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82017DE0530(51)_ENG_SUMJURE
JURE summary
JURE summary
The plaintiff is an automobile expert who invested funds, in his own name, with an asset management company that distributed his products without authorisation in Germany. Following the company's receivership, several creditors, including the plaintiff, instructed three Swiss attorneys (hereinafter ‘the defendants’) to collect their debts. Through the joint action of the three defendants, the plaintiff accepted without reservation a composition agreement with the transfer of assets between the company and all of its creditors.
In parallel with this homologation procedure conducted by the three lawyers, the plaintiff sued the company's management team for damages and won. Nevertheless, the judgment lost its enforceability because Swiss law provides that a creditor who accepts a composition agreement must notify his co-debtors within ten days before the general meeting of creditors and propose the assignment of his claim against payment. This formality had not been fulfilled by the defendants. For this reason, the plaintiff claimed compensation from the defendants.
The plaintiff filed an interlocutory appeal before a court of first instance, which denied the international jurisdiction of the German courts. The Court of Appeal reversed the ruling. The defendants petitioned the Bundesgerichtshof (hereinafter ‘the Supreme Court’) to reinstate the first instance judgment.
The jurisdiction of the German courts can be inferred from Article 2 of the new Lugano Convention (1) if the requirements of Article 15(1)(b) and (c) of the Convention are met. Therefore, the Supreme Court must determine whether the plaintiff is a consumer in the present dispute and whether the defendants have directed their business activities towards Germany.
The Supreme Court recalls that, according to the case law of the Court of Justice of the European Union, consumers are natural persons who conclude a contract for a private purpose which cannot be attributed to a professional or commercial activity. The notion of consumer must be interpreted restrictively and defined according to the position of that person in the context of the specific contract in relation to its nature and purpose and not according to the subjective position of that person, so that the same person may be considered a consumer in the context of certain transactions and a professional in the context of others.
The plaintiff entered into a private investment contract without mentioning his professional activity. The existence of a profit is not sufficient to label the plaintiff as an entrepreneur because the size of the investment is not so large that it would require a commercial organisation. Also, the origin of the money invested, possibly criminal if it comes from the applicant's commercial activities, is not relevant because the object of the contract is clearly private. The opposite rule would be likely to restrict the jurisdiction of the consumer court.
Furthermore, the Supreme Court considers that there is a body of evidence proving that the defendants directed their activity towards Germany, the plaintiff's place of residence. Among these indicators, the web site detonating a certain openness to the international market as well as the direct solicitation of German consumers. As for the existence of a legal succession between the defendants and the change of legal form, this does not affect the claim because there is a continuity of responsibilities. The Supreme Court therefore confirmed the jurisdiction of the German courts.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.