Jurisdiction in consumer contracts

Case no. BS-14032/2018-HJR and case no. BS-14004/2018-HJR
Judgment delivered on 18 May 2020

Saxo Bank A/S
vs.
B and C

The main issue in these cases was whether two agreements made between two foreign users of Saxo Bank's online investment portal, B and C, and the bank were consumer contracts within the meaning of the EU Brussels I Regulation, with the effect that an agreement conferring jurisdiction on the Maritime and Commercial Court in Denmark in the bank's general terms and conditions was not binding.

Referring to the statements given and the information produced in the case, the Supreme Court considered that B and C entered into the agreements with Saxo Bank as private individuals, that their deposits were paid using their own funds, and that the agreements were concluded with a view to adding to their savings to cover their private, personal expenses.

To this should be added that, based on Saxo Bank's own marketing material and the information provided to the bank by B and C when they entered into the agreements, the bank could not have had a justified expectation that B and C were intending to make investments as part of their business activities. In addition, no other information had been provided about matters that could have created such an expectation.

Accordingly, B and C should be regarded as consumers, and this could not be altered by the fact that, besides their investments via Saxo Bank's investment platform, they were shareholders and had management positions in different businesses.

The Supreme Court thus held that the agreements made between B and C and the bank were consumer contracts within the meaning of the Brussels I Regulation. As the agreements conferring jurisdiction were thus not binding under the Regulation, and as jurisdiction did not lie to Denmark, the Supreme Court affirmed the High Court's dismissal of the cases.