EUPillar BGH, 28.2.2012

Summary

The plaintiff is a lawyer from France who took three loans from a German bank. The purpose of the loan’s use stated in the first agreement was that the loan served to be a financial contribution to a company (H. GbR). In the second and third agreement the loan’s purposes were ‘Personal purposes’ and ‘contribution as a partner to the company’. The plaintiff contested the international jurisdiction of German courts. The first and second instance courts affirmed the international jurisdiction of German courts. The Federal Court of Justice confirmed these judgments. It held that the granting of loans fell within the meaning of ‘provision of services’ in Art. 5 no. 1 (b) Brussels I. The classification of agreements on bank credits as a ‘provision of services’ was controversial but it could be deduced from the content of Art. 63 (3) Brussels I where there is stated an exception to Art. 63 (1) Brussels I. The exception in paragraph three made clear that the granting of loans by banks usually is included by the Regulation. The Court referred to the CJEU’s jurisdiction concerning the term ‘provision of services’: it didn’t have to be interpreted in an extensive way as it was the case concerning the rule of Art. 57 TFEU. Also, the understanding of the term had to be interpreted by paying attention to Recitals (7), (17) Rome I-Regulation: in Rome I the term ‘provision of services’ had to be understood in an extensive way so that the granting of loans by banks would be included by the term. According to the Court there were no doubts about this understanding so that a preliminary request wasn’t necessary (acte clair). The Court further stated that the lawyer didn’t conclude the contract “outside his trade or profession” in terms of Art. 15 Brussels I. The amount borrowed by the bank directly went to the account of the company, therefore the taking up of the loan wasn’t an activity ‘outside his trade or profession’ in terms of Art. 15 Brussels I. Concerning the granting of the loan the Court uses arguments from the systematics of the Regulations Rome I, Brussels I. The Court also refers to the jurisdiction CILFIT of the CJEU which states that a preliminary ruling isn’t necessary if the correct interpretation of the term is obvious and if there is no scope for any reasonable doubt. It is almost unanimously accepted that the granting of loans by banks is included by the term ‘provision of services’. The interpretation by the Court doesn’t extend the jurisdiction by the CJEU and the reasonable understanding of the wording. The judgment is correct.