EUPillar OLG Hamburg, 17.03.2005

Summary

The plaintiff is a protective association against economic crime. The defendant is a publisher who sends a form to exhibiting companies. The publisher obtains the postal addresses of the companies through the trade fair organizers. When the form is filled in and sent back to the defendant, it is published in a directory listing companies as exhibitors for free. Furthermore, the companies have the opportunity to place an advertisement at the cost of 971 Euros per year. The plaintiff regards this behaviour as anticompetitive and filed a preventive action for injunction before the first instance, which passed a judgment according to the application. The defendant now appeals against this ruling. The international jurisdiction of German courts is discussed and based on Art. 5(3) Brussels I Regulation. The court considers it sufficient that the violation of legal interests is alleged and it does not seem impossible. As Hamburg is an important exhibition venue and the defendant has listed more than 11.000 companies in its directory, it is likely that an anticompetitive behavior may occur in the sense of a risk of repetition. This judgment is in accordance with the CJEU’s ruling in C-167/00 where an association filed a preventive action for injunctive relief against a company. This shows that it is not necessary that a violation of rights already took place. A mere reasonable probability is sufficient to provide a basis for jurisdiction. A fortiori, the risk of repetition must be sufficient for the applicability of Art. 5(3) Brussels I Regulation. This is also in accordance with the wording of Art. 5(3) Brussels I. As Hamburg is a major exhibition venue a risk of repetition is very likely. Therefore, the Higher Regional Court of Hamburg has international and local jurisdiction over this case.