The German Federal Court (BGH) ruled on the strict interpretation of the special consumer protection under Regulation № 44/2001

BGH, BESCHLUSS vom 13.10.2016, IX ZB 9/16

The appellant who is a German citizen, has purchased a wooden house from a Finnish company together with his wife. The spouses ordered the retractable house and the space was supposed to be used as a living space for the family. The appellant and the Finnish company had also signed an agency contract as the appellant wanted to act as a sales representative for the Finish company in Germany.

In a legal dispute brought about by the Finish company, the Finnish court ruled that the appellant had to pay the last installment and a reimbursement of the model house on the basis of his contractual obligations to the Finnish company. German citizen then appealed against this decision before the Regional Court in Germany.

Following the decision of the Supreme Court of Finland, the German Regional Court adopted its international jurisdiction for the action brought by the Finnish company.

The German Federal Court of Justice (BGH) court had to distinguish the qualities of the contract, namely if it was to be considered a commercial or a consumer contract.

According to the Federal Court of Justice Article 44 of Council Regulation No 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, Section 15 (1) AVAG, § 574 (1) sentence 1 no. 1 of the German Code of Civil Procedure (ZPO) is not applicable in this case.

Even if the contract is primarily attributable to the appellant’s private sphere, because he is responsible for the creation of housing for his family, the appellant has also pursued an industrial purpose which is recognizable to the undertaking.

The fact that the appellant’s wife is also a party to the contract on the wooden house does not mean that the contract would be classified as a consumer contract within the meaning of Article 15 of the Council Regulation in the dispute between the appellant and the Finnish company.

The exclusive jurisdiction of Article 16 of the Council Regulation in consumer goods is intended to provide the consumer with special protection by enabling him to conduct the dispute with the company before the courts of his residence. This derogation is justified by the fact that the consumer is to be regarded as economically weaker and legally less experienced in relation to the professional or commercial contracting party (ECJ, judgment of 3 July 1997, cited above, paragraph 17, of 20 January 2005, 34). At the same time, the European Court of Justice has stressed that the concept of consumerism is to be interpreted strictly, and cannot be extended to persons who do not need this protection because of the exceptional nature of the special protection regime.

The involvement of a consumer in the contract does not make the contractor, who is also acting as a professional, a consumer in view to his judicial role. The imputation of the consumer status of the co-contractor who is not involved in the process is not justified in his favor. Thus the protection of Art. 16 of the Council Regulation does not apply in this case.

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