PIL instrument(s)

Case number and/or case name

OLG Köln, 24.02.2003 – 16 U 93/02

Details of the court

Germany, Second Instance

Articles referred to by the court

Date of the judgement

23 February 2003

Appeal history

CJEU's case law cited by the court

Summary

The plaintiff is a German resident and citizen. The defendant is a shipping company located in the Netherlands. The plaintiff received a letter from the defendant stating that the plaintiff won 8000 DM. In the letter, several brochures for payment and test orders were attached. The plaintiff sent the prize seal together with a test order to the defendant and demanded payment of the prize. The defendant refused stating that it lies within his discretion to pay. The plaintiff now sues for payment. The first instance declined the international jurisdiction. The plaintiff is appealing against this decision. The appellate court accepted the international jurisdiction pursuant to Art. 5 nr. 3 Brussels I. The court declined jurisdiction over consumer contracts pursuant to Art. 15 (1)(c) because no contract was concluded between the parties since the plaintiff did not order any goods from the defendant. This distinguishes the case from the case law of the CJEU on this question. Rather, the court qualifies the prize notification as a tort pursuant to Art. 5 nr. 3. It states that a prize notification is an unfair competition which constitutes a tort in the sense of Art. 5 nr. 3. The place where the harmful event occurred is the place where the plaintiff received the letter. This was in Germany. Therefore, the German courts are internationally competent. The judgment is not correct given the CJEU jurisdiction in C-27/02 (Engler). The CJEU stated that a prize notification not accompanied by an order fell within the scope of application of Art 5 no 1 Brussels I.