On March 28, a FLIXBUS bus traveling from Berlin to Zurich deviated from its route, resulting in a significant incident on German soil. Among the 54 passengers, 29 sustained minor injuries, 6 sustained serious injuries, and 4 were killed.
It is tempting to conclude that an accident on German soil should be subject to German jurisdiction. However, this conclusion is incorrect. In order to protect consumers, our legislators have provided for means of action before the courts of the consumer's place of residence. The idea is to facilitate the defense of the consumer, who is generally a helpless individual, against the giants of the economic world.
In accordance with Article 114, paragraph 1, of the LDIP, an action brought by a consumer who satisfies the additional conditions set forth in Article 120, paragraph 1, letters a to c may be brought, at the consumer's discretion, before the Swiss court of the consumer's domicile or the court of the supplier's domicile. Paragraph 2 specifies that the consumer cannot renounce in advance the forum of their domicile. This means that any contractual stipulation of choice of forum does not exclude the possibility of acting at the consumer's domicile.
The term "consumer" is not defined in the legislation. Article 114, paragraph 1, of the LDIP refers to Article 120, paragraph 1, of the LDIP to define it.
In accordance with Article 120, paragraph 1, of the LDIP, a consumer is defined as an individual who has entered into a contract for a service intended for personal or family use, and which is not related to the consumer's professional or commercial activity. Therefore, a consumer is someone who purchases for non-professional use.
Article 114, paragraph 1, in conjunction with Article 120, paragraph 1, letter a to c, of the LDIP provides additional conditions for the opening of a forum in Switzerland. The consumer's supplier must have received the order in Switzerland (a). Alternatively, the conclusion of the contract (the purchase) must have been preceded by an offer or advertisement in Switzerland (b). Furthermore, the consumer must have performed the acts necessary for its conclusion there. Finally, the consumer must have been induced by the supplier to travel to a foreign country in order to place the order there (c).
In essence, the FLIXBUS case indicates that a claim for contractual liability may be pursued in Switzerland by passengers residing in Switzerland who were not on the bus that crashed for professional reasons (e.g., vacation, family trip, etc.). This claim may be brought if the passengers meet one of the conditions set forth in Article 120, paragraph 1, letters a to c. The most straightforward of these conditions is to have been advertised by the aforementioned company in Switzerland.
It is evident that a place of jurisdiction is not sufficient to prevail in a case; the typical conditions for an action in contractual liability must also be met, namely (i) a breach of contract, (ii) damage, (iii) a causal link between the breach of contract and the damage, and (iv) fault on the part of the party who breached the contract.
While fault is presumed, and breach of contract would be easily admitted—given that travel safety is an integral part of a contract of carriage—it still remains to prove damage that is causally linked to the contractual breach.
As the reader may have discerned, the preceding paragraphs are our sole academic opinion and intended to encourage those affected by such an accident to evaluate their rights and privileges under the law .