EUPillar LG Köln, 21.1.2010

Summary

The claimant, who has its seat in Germany and rents camper vans, had concluded a rental agreement with the defendant, whose domicile is in the Netherlands. The conclusion of the contract had been preceded by contact per email by the defendant via the claimant's homepage, on which directions to the claimant's premises and a note stating that the claimant spoke Dutch were displayed. In its reply to the defendant's email, the claimant made a special offer to the defendant regarding the reservation of a camper van until a certain point in time. The defendant made the reservation by fax. The subsequently concluded rental agreement contained a jurisdiction clause in which the seat of the claimant was determined as place of jurisdiction. Due to the late return of the rented camper van, the claimant brought an action for damages before the Regional Court of Aachen. The Regional Court held that it had international jurisdiction on the basis of Art. 23 Brussels I Regulation, against which the defendant lodged an appeal to the Higher Regional Court of Cologne. The Higher Regional Court dismisses the appeal. The jurisdiction agreement is valid within the meaning of Article 23(1)(a) Brussels I Regulation. Art 17 does not apply to the case since Article 15(1)(c) is not applicable, too. A 'directing' within the meaning of the provision is not given, since on the website contracts could not be concluded via internet. In case of a 'passive website' the consumer must have been directly lead into the conclusion of a contract. The court further states that the contract had to be concluded via distance selling. It is not clear, why the court regards the conclusion of the contract through means of distance communication as a requirement for the applicability of Art. 15 et seq. The CJEU in C-190/11 declares that these rules are applicable even given the fact that the contract had been concluded via distance communication. Although the professional only had a passive website it is doubtful why the Dutch phrase 'We speak Dutch!' and a corresponding direction sketch shouldn’t have motivated the defendant to come to the seat of the entrepreneur and conclude a contract. Unjustly the court stated that it is not necessary to answer this question as the causality between the conclusion of the contract and directing business activities is generally a necessary requirement. The court’s judgment is not correct as it states requirements regarding Art. 15 et seq. that are not covered by the wording and jurisdiction. That is why the following instance overruled the judgment.