EUPillar OLG Hamburg, 8.4.2009

Summary

The plaintiff brought an action for injunction. The defendant had a website that was run from Austria. The plaintiff claimed for omission because of an alleged misleading advertising on that website. The Regional Court assumed the international jurisdiction of German courts. The Higher Regional Court had to consider whether the German courts had international jurisdiction pursuant to Art. 5 no. 3 Brussels I. The court held that this was the case if the place where the harm arose was Germany. This could be assumed when the website’s content was aligned towards Germany. The purpose of Art 5 No. 3 Brussels I is to establish a place of jurisdiction where the taking of evidence and objective clarification can be performed in the most appropriate way. The CJEU stated in eDate Advertising (CJEU, 25/10/2011 – eDate Advertising ./. X, 2011, C-509/09) that in case of an infringement of personality rights via internet the person who considers his rights having been infringed can bring an action in respect of all the damage caused either before the court where the publisher is established or before the courts where the centre of his interests is based. The person can also bring an action before the courts where the content has been accessible but only in respect of the damage caused in this country. In the present case there was no alleged infringement of personality rights but an alleged infringement of the rules protecting consumers. It is not clear if the guidelines stated in eDate can be transferred to the present case. The court could have made a preliminary request in order to obtain the correct interpretation in the case of the infringement of consumer protection rules.