EUPillar BGH, 11.2.2010

Summary

The respondent, seated in Washington, USA, distributes the computer game “Half Life 2” via CD-ROM. The back of the CD-packaging showed the general terms and conditions (GTC) containing a choice of law clause in favour of the law of Washington, USA. The GTC also contained a term saying that the customers were not permitted to sell their online user accounts which were included in the CD-ROM. The claimant, a German consumer protection association, claims for injunctive relief prohibiting the respondent to use the latter term as it violates consumer rights. According to the claimant, the clause actually prevents consumers to sell the CD-ROM (including their online user account) which violated the German copyright law (§§ 17 (2), 69c No. 3 Urheberrechtsgesetz). According to Art. 4 (1) Rome II-Regulation and the German autonomous conflict of law rules (Art. 40 I EGBGB), German law was applicable as the respondent had used the GTC in Germany for contracts with German consumers. The use of unfair terms and conditions is classified as tortious act in the sense of Art. 4 (1) Rome II-Regulation. With regard to contractual claims, the court applied German law under Art. 6 para. 1 and 2 Rome I.Pursuant to Art. 6 (1) and (2) Rome I-Regulation and the German autonomous conflict of law rules (Art. 29 (2) and 29a EGBGB), the control of the GTC used in consumer contracts is governed by German law. The Court found that the clause was in accordance with German copyright law and therefore dismissed the case.