EUPillar AG Braunschweig, 8.1.2014

Summary

The parties argued about damage claims. The purchase contract that has been concluded between them contained a choice of law clause in favour of Luxembourgish law. It was doubtful whether the contract correctly founded a claim that obliged the defendant to pay damages generally and to an extent determined in advance. The court stated that the rule in the contract between the parties wasn’t valid. The contract between the parties had to be considered as a consumer contract within the meaning of the rule. The court held that according to Art. 6 (2) sentence 2 Rome I German law applied to the case. It then applied § 309 no. 5 BGB (German Civil Code) and denied the validity of the rule regarding the obligation to pay general damages. The court’s formulation doesn’t exactly reflect the purpose of Art. 6 (2) sentence 2 Rome I that aims to ensure the consumer’s protection by stating the applicability of mandatory rules that arise from the law which would govern the dispute without a choice of law. The court solely said that German law applied to the case. It should have stated clearly that pursuant to Art. 6 (2) sentence 2 Rome I solely mandatory rules applied to the case. The rule doesn’t allow applying all rules which would govern the dispute without the forum clause. In the case it was however correct to apply § 309 no. 5 BGB because the rule ensures compulsive consumer protection within the law of general terms and conditions.