Case summary

Deciding Body
Higher Regional Court Stuttgart
Oberlandesgericht Stuttgart
National case details
Date of decision: 14.09.18
Registration ID: 5 U 98/17
Instance: Appellate on fact and law
Case status: Pending
Area of law
Consumer protection
Unfair terms

Identification of the case

National law sources
  • BGB § 280(1), § 286(1), § 307; ZPO § 286 (1) 1, § 308 (1); GKG § 39(2)

Summary of the case

Facts of the case

The plaintiff requests a payment of damages amounting to 44.807.167,07 Euro due to false investment advice by the defendant (Swiss Bank XXX). The damages occurred due to investment into the Sheridan-Fonds (based on a highly risky version of dividend stripping referred to as “cum ex dealings”). The previous instances granted the payment of the damages, if the plaintiff transfers the acquired shares back. The defendant unsuccessfully appealed this decision.

Type of enforcement
  • Civil judicial enforcement
Measures, actions, remedies claimed/applied

Reimbursement of damages amounting to 44.807.167,07 Euro due to false investment advice.

Reasoning (legal principles applied)

Focus of this summary: choice of law clause in terms and conditions. At the OLG Stuttgart, the relevant legal question is whether the ‘choice of law’-clause within the terms and conditions validly determines Swiss law as applicable or whether German consumer protection law should be applied. Although the content and extent of the choice of law are clear (which would mean that the clause has to adhere to Swiss law), but they must also adhere to the mandatory conditions of Germany law regarding ‘choice of law’-clauses. According to art. 6(2) Rome-I-Regulation and the Federal High Court’s (Bundesgerichtshof) interpretation thereof, the choice of law in consumer contracts may not lead to the disapplication of mandatory protection clauses for consumers in the state of domicile of the consumer (here Germany). The OLG Stuttgart follows the Federal High Court to ensure strong consumer protection. It argues that consumers who prefer the original choice do not need to invoke the invalidity of the terms and conditions. While the OLG Stuttgart sees the potential for a referral of this question to the CJEU, it determines that it is not obliged to do so.

Following the examination of the ‘choice of law’-clause under German law, the OLG Stuttgart determines that it is invalid. Firstly, due to the non-express inclusion of non-contractual claims, the clause lacks transparency. Secondly, the court determines the clause abusive according to art. 3(1) Directive 93/13/EC (as interpreted by the CJEU in 191/15). The abusiveness stems from the fact that the clause gives the impression to the consumer that only Swiss law is applicable. Thereby, it fails to inform that the consumer also enjoys the protection of mandatory provisions of Germany law according to art. 6(2) Rome-I-Regulation.

Elements of judicial dialogue

Dialogue techniques

Conform interpretation with EU law as interpreted by the CJEU.

Purposes of using judicial dialogue

To support the OLG Stuttgart’s argumentation for declaring a ‘choice of law’-clause void.

Expected effects of judicial dialogue

Strong consumer protection through broad application of German mandatory provisions regarding consumer protection.

Additional notes on the decision

Impact on national case law
  • Broad interpretation of ‘consumer’ (here: a multi-million Euro company);
  • Extension of applicability of German mandatory norms.
External links

Case author

S. Mareike Hoffmann, University of Passau

Published by Chiara Patera on 30 January 2020