OGH on consumer jurisdiction for the purchase of investment products with Bitcoins

Jan 27, 2021 Benn-Ibler Rechtsanwälte

When purchasing investment products that are advertised and distributed in Germany and whose purchase is only possible by means of Bitcoins, the consumer can only be sued in the country of residence.

The defendant, resident in Germany, intended to purchase investment products from the plaintiff, who was resident in Austria, which could only be acquired in exchange for Bitcoins. In order to complete the transaction, an authorised representative of the plaintiff visited the defendant at her home in Germany and provided her with the Bitcoins necessary for the purchase. The defendant undertook to repay the bitcoins to the plaintiff's wallet within four weeks at the latest.

The plaintiff, as the "lender", now demanded the return of the loan. The special jurisdiction of the Austrian courts was based on the jurisdiction of the place of performance within the meaning of Article 7(1)(a) of the Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. The defendant contested and objected to the international and local lack of jurisdiction of the court of first instance.

The Austrian Supreme Court (Oberster Gerichtshof, OGH) stated that in the absence of an exclusive jurisdiction, the applicability of the consumer jurisdiction according to Art 17 of the Brussels I Regulation, which as a lex specialis takes precedence over the other jurisdictions, had to be examined first. This was to be affirmed because the defendant was only privately interested in the investment products. The contract she concluded with the plaintiff did not serve her professional or commercial activity. On the basis of consumer jurisdiction, the defendant was to be sued before the courts in which she was domiciled. The international jurisdiction of the Austrian courts was not given.

OGH 3 Ob 95/20x (04.11.2020)