OLG Köln; 2019-09-05; 24 U 34/19
Decision by national courts in the field of European Union law — ECLI:DE:OLGK:2019:0905.24U34.19.00
Date: 2019-09-05
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82019DE0905(51)_ENG_SUMJURE
JURE summary
JURE summary
The parties to the dispute dealt with by the Oberlandesgericht Köln (hereinafter ‘the Court of Appeal’) were an executor of an estate in Germany (hereinafter the ‘plaintiff’) and an investment advisor domiciled abroad (hereinafter the ‘defendant’). The plaintiff filed an action with the Landgericht Köln (hereinafter ‘the Court of First Instance’) seeking compensation due to allegedly incorrect investment advice.
The Court of First Instance dismissed the action citing its inadmissibility. German courts did not hold the international jurisdiction as Article 15(1)(c) and Article 16(1)or(2) of the new Lugano Convention (1) applied solely to disputes in consumer matters. The Court of First Instance did not consider the plaintiff (in his role as an executor of the estate) to be a consumer and therefore, the international jurisdiction was subject to the place of the harmful event. Having applied German law in accordance with Article 6 of the Rome I Regulation (2), the Court of First Instance found that neither the place of the harmful event nor the place giving rise to it was in Germany. The plaintiff lodged an appeal against this decision.
The Court of Appeal found that the Court of First Instance was correct in its decision and rejected the appeal of the plaintiff. The applicable law was the new Lugano Convention due to the fact that the plaintiff (in his role as an executor of the estate) asserted a claim for compensation relating to the brokerage of investment products which was not a dispute within the law of succession under Article 1(2)(a) of the new Lugano Convention. However, the plaintiff could not be seen as a consumer due to his role as an executor of the estate as he had been appointed as executor of the estate based on his professional activity as a lawyer. In addition, the plaintiff could not rely on the consumer character of the dispute as he himself had not been a party to the respective consumer contract. An executor of the estate who was not a consumer could not invoke jurisdiction regarding consumer matters.
According to the plaintiff, the parties had concluded an agreement on the place of jurisdiction. The Court of Appeal pointed out that such an agreement could not be effective as the decedent (as a contracting party) and the defendant were neither domiciled nor had their habitual residence in the same Member State. Therefore, such an agreement on the place of jurisdiction would have been contrary to Article 17 of the new Lugano Convention and was ineffective under Article 23(5) of the new Lugano Convention.
(1) Convention 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).