BGH; 2023-03-02; III ZR 108/22
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2023:020323UIIIZR108.22.0
Date: 2023-03-02
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82023DE0302(51)_ENG_SUMJURE
JURE summary
JURE summary
The case dealt with by the Bundesgerichtshof (hereinafter ‘the Supreme Court’) concerned a dispute regarding investment terms and conditions of an investment fund as general terms and conditions and their incorporation into an investment agreement within the primary and secondary acquisition of fund shares.
The parties to the dispute were an investor in an investment fund domiciled in Germany (hereinafter ‘the plaintiff’) and an asset management company (hereinafter ‘the defendant’). The fund was a legally dependent special fund (1).
The plaintiff argued that the defendant was continuously taking distribution fees from the fund assets within the payable cost flat-rate. This happened on no legal grounds, as the provisions contained in the fund prospectus and the fund management regulations did not apply to the relationship established between the plaintiff and the defendant. The plaintiff demanded that the defendant pays back the distribution fees it was paid from the fund assets.
The action was not successful in any instance. The plaintiff pursued its claim to the same extent further by filing a revision.
The Court of Appeal was correct to recognise the international jurisdiction of the German courts under Article 17(1c) and Article 18(1) of the Brussels I Regulation (2) regarding consumer actions as the plaintiff sued the defendant as a private investor.
The Supreme Court expressed the opinion that the provisions of the fund management regulations and the investment prospectus represented investment terms and conditions under Article 162 KAGB (3) and as such were to be treated as the general terms and conditions under Article 305 ff. of the BGB (4) which had to be effectively incorporated into the investment agreement made between the parties. The plaintiff was thus entitled to contractual claims and a proportionate reimbursement of the distribution fees contained in the cost flat-rate.
In addition, the Supreme Court stated that as for the secondary acquisition of fund shares through a trading exchange or in the free market, the last acquirer takes over all rights and obligations of the first acquirer under the investment agreement based on a purchase made under Article 453 of the BGB and that within the relationship between the new acquirer and the asset management company, it is therefore not necessary to recognise the investment terms and conditions again.
The Supreme Court annulled the decision of the Court of Appeal and referred the case back to the Court of Appeal for a new hearing and decision.
(1) Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS).
(2) 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.
(3) Kapitalanlagegesetzbuch (German Capital Investment Code).
(4) Bürgerliches Gesetzbuch (German Civil Code).