The parties litigated over the question whether the international jurisdiction of German courts was given pursuant to Art. 5 no. 3 Brussels I. The court had to decide
(1) Whether a gratuitous consultancy agreement falls within the scope of application of Art. 5 no. 3 Brussels I,
(2) How the place of the actual provision of the service in Art. 5. 3 Brussels I has to be determined and
(3) How claims regarding product liability have to be treated under the scope of the Brussels I Regulation.
The Regional Court assumed the international jurisdiction of German courts. The Higher Regional Court stated that a litigation concerning damages from a gratuitous consultancy agreement fell within the meaning of Art. 5 no.1 (a) Brussels I because there was no ‘provision of services’ as in Art. 5 no.1 (b) indent 2 Brussels I. Furthermore, the place of the actual provision of services had to be determined among sensually noticeable facts. Further considerations concerning PIL weren’t necessary. Claims concerning product liability without relation to contracts of sale were claims relating to tort as in Art. 5 no. 3 Brussels I.
The determination of the place of the provision of services by actual considerations can promote legal security in most of the cases but it’s difficult to determine that place in cases where there is no actual acting of the other party. The court denied the existence of the ‘provision of services’ because the service has been gratuitous. This consideration is in accordance with the interpretation of Art. 56 sentence 1 TFEU by the CJEU. But it is not clear whether this interpretation fits into the purposes of the Brussels I Regulation. Within the area of European primary law there’s the purpose to exclude non economical activities from the scope of application. It is, in fact, not clear if this purpose can be transferred to the Brussels I Regulation. But in the first indent there’s also a differentiation between gratuitous exchange of goods (those that are gratuitous fall under Art. 5 no. 1 (a) Brussels I) and such in return for payment. It seems reasonable in order to obtain coherence between the two indents of Art. 5 no. 1 (b) Brussels I to also maintain this differentiation in Art. 5. 1 (b) indent 2 Brussels I. Therefore the judgment seems to be correct.