Case number and/or case name
OLG München, 8.1.2013 – 34 AR 336/12
Summary
The applicant claimed for damages from transferred rights. Her husband had assigned claims to her which concerned investment relations with the defendant no. 2, an Irish credit institute. The defendant no. 1 was a German company. It was doubtful whether the exclusive jurisdiction of Art. 15, 16 Brussels I was given. In that case Art. 6 no. 1 Brussels I wouldn’t apply to the present case so that both defendants could be sued together in Germany.
The court held that Art. 15, 16 Brussels I couldn’t be applied if claims had been transferred by a consumer to an assignee who acts within his trade or profession. In the present case the assignee didn’t pursue the claims as a consumer. The court stated that Art. 6 no. 1 Brussels I applied to the present case because there was no exclusive jurisdiction. Both defendants therefore could be sued before German courts.
The CJEU stated in C-89/91 (Shearson Lehman Hutton) that the Regulation protected the consumer only in so far as he personally was the plaintiff or defendant in proceedings [paragraph 23]. It was correct to deny the existence of an exclusive jurisdiction of German courts according to Art. 15, 16 Brussels I. It is however doubtful whether the differentiation between commercially acting assignees and those acting as consumers can be maintained. The present case’s outcome however didn’t depend on this issue. The judgment is correct.