Rejection of the Jurisdiction of Swiss Courts in a Consumer Matter

Facts

A., the defendant and appellant, who resides in Germany, alleges a violation of Art. 15 para. 1 lit. c and Art. 16 et seq. of the Lugano Convention. He argues that the lower court failed to recognize that it is not he who bears the burden of proof for the existence of the requirements of Art. 15 para. 1 lit. c of the Lugano Convention, but rather Bank X., the plaintiff and respondent, who must prove their non-existence.

The lower court correctly stated that according to the general principles, the plaintiff bears the burden of proof for the facts establishing jurisdiction. If this proof is successful, it is up to the defendant to prove exceptional circumstances, such as the existence of special jurisdiction for consumer matters under Art. 15 et seq. of the Lugano Convention.

The lower court correctly assumed that the appellant is burdened with proving the facts on which he bases his objection to the otherwise valid jurisdiction agreement, which is based on the partially mandatory jurisdiction rules for consumer matters.

Considerations

The lower court found that neither was it alleged nor was it apparent that the respondent's branch in Germany already existed in 1987 or at the latest in 1994, when the appellant signed the document "Application for opening of an account and general conditions". Rather, it appears from the extract from the website of the Federal Financial Supervisory Authority that the necessary approvals for the branch were probably only granted in 2006.

The lower court then stated that the appellant wishes to justify the orientation of the respondent's activities towards Germany by means of extracts from their website. However, it is a matter of common judicial knowledge that the internet only developed into a mass communication medium after 1994 and was accordingly used by companies for advertising purposes, etc. The appellant also does not specifically allege that such websites were already in existence in 1994.

Based on this, the lower court considered that it had not been established that the respondent was engaged in professional activities in Germany in 1994 or earlier, or had oriented such activities towards Germany in any way. Therefore, there is no consumer matter within the meaning of Art. 15 para. 1 lit. c of the Lugano Convention.

The lower court therefore correctly recognized that the application of this provision only comes into question if the respondent was engaged in activities in…