Case number and/or case name
OLG München, 25.10.2010 – 19 U 2004/10
Summary
The plaintiff, a bank based in Germany, sues the defendant, a French attorney to repay three loans which were paid out to the account of H., H. & Partner GbR, a law firm, where the defendant was an international partner.
The first loan was to be used as a shareholder contribution whereas the other two were additionally intended for private use. The last loan contracts also included a jurisdiction agreement and stated the applicability of German law. All contracts were signed individually in Paris and in Munich.
As the due payments were not made, the plaintiff cancelled the loan agreements. After the first instance decided the case by a default judgment, the defendant appeals against this ruling and contests the jurisdiction of German courts.
The court of appeal approves the decision of the previous instance and explicitly declares the international jurisdiction of German courts. It bases this decision on the valid jurisdiction agreement between the parties and on Art. 5 no.1 (b) Brussels I. The court qualifies the loan agreements as service agreements pursuant to Art. 5.1 lit. b Brussels I.
By interpreting Art. 15(1) Brussels I autonomously and narrowly the court argues that Art. 16 and 17 do not have a barrier effect on Art. 5 or 23 Brussels I. With regard to the CJEU ruling concerning Art. 15 Brussels I it considers the applicant’s pleading inconsistent and classifies the loans as belonging to the professional activity of the attorney.
Moreover, the court states that the requirements of Art. 15(1) lit. c Brussels I are not met as the bank did not direct its activities towards the defendant’s member state. It is not sufficient that the plaintiff had a branch office in Paris or sent the contract documents to the defendant.
Also, the court states that the French consumer protection law which would induce the invalidity of the loan Agreements, does not apply to the case.
The court states in accordance with German scientific literature that the place of performance has to be determined autonomously without recourse on the lex causae. It qualifies the loan agreements correctly as service agreements by referring to various German legal authors and legitimately resorting to the concept of service in Art. 50(1) EC Treaty and recital 17 of Rome I.
According to the CJEU’s judgement in C-464/01 (Gruber) Art. 13 et seq. Brussels I are inapplicable if the purpose of the contract even is solely partially professional. Considering that the defendant is a lawyer and partner of the law firm on whose account the loans were paid out, there can be no doubt that the loan contracts had at least partially a professional purpose.