BGH; 2024-05-15; VIII ZR 226/22
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2024:150524UVIIIZR226.22.0
Date: 2024-05-15
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82024DE0515(51)_ENG_SUMJURE
JURE summary
JURE summary
A consumer domiciled in Germany (hereinafter ‘the plaintiff’) filed a claim against a company based in Switzerland (hereinafter ‘the defendant’) seeking the repayment of amounts paid.
In 2010 and 2013, the plaintiff concluded two purchase and service contracts with the defendant for 800 and 600 teak trees respectively on plantations in Costa Rica. The defendant's concept provided for the trees to be felled after a certain period of time and the wood to be sold in order to generate a return for the plaintiff. The plaintiff was not informed of a possible right of cancellation.
In 2020, the plaintiff revoked his declarations of will relating to the two contracts and demanded the repayment of the amounts paid, totalling EUR 81 200, less the proceeds from timber yields he had already received. The defendant contested the jurisdiction of the German courts arguing that according to the contractual clause, the exclusive jurisdiction lay with Swiss courts.
The Landgericht Köln (hereinafter ‘the Court of First Instance’) upheld the action and decided in favour of the plaintiff. The following appeal of the defendant lodged by the Oberlandesgericht Köln (hereinafter ‘the Court of Appeal’) was not successful, with the Court of Appeal confirming the decision of the Court of First Instance. The international jurisdiction of German courts followed from Article 15(1)(c) and Article 16(1)(2) of the new Lugano Convention (1). The defendant targeted its business activities at German consumers. Indications of this were, for example, the defendant's international internet presence with a ‘.com’ domain, prices in euros and a German bank account for payments.
The defendant's revision filed to the Bundesgerichtshof (hereinafter ‘the Supreme Court’) was unsuccessful. The Supreme Court confirmed the legal opinion of the Court of Appeal that German law was applicable pursuant to Article 6(1) of the Rome I Regulation (2), as the defendant directed its activities to Germany, where the plaintiff - as a consumer - was domiciled.
The Court of Appeal did not err in law in assuming that the plaintiff was entitled to the right of cancellation because the cancellation period did not begin to run due to the plaintiff not being informed of the right of cancellation to which he was entitled. The defendant could not invoke the exclusion of the right of cancellation pursuant to Section 312d (4)(6) of the BGB (3) in the old version, as despite the teak investment being concluded as a distance selling contract, it represented a long-term investment with a growth and harvest period of several years. The exclusion of the right of cancellation is intended to cover short-term speculative transactions in which consumers could speculate without risk at the expense of the trader within the cancellation period, which was not the case here.
The Supreme Court dismissed the defendant's revision against the judgement of the Court of Appeal.
(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).
(3) Bürgerliches Gesetzbuch (German Civil Code).