EUPillar BGH, 29.4.2010

Summary

The parties – a German consumer protection association as claimant and a British airline as defendant – argued about the conformity of general terms and conditions (GTC) used by the defendant with German consumer protection laws. The applicant claimed for injunctive relief concerning a particular clause roughly saying: “If you don’t use the Flight Coupons in the prescribed order, the ticket loses validity and won’t be accepted.” During the oral proceedings, the parties agreed that the lawsuit shall only reach a decision for – cumulated – contracts concluded after 17 December 2009 and for customers who have their habitual residence in Germany and for flight departures and arrivals in Germany. The German Federal Court of Justice exercised jurisdiction according to Art 5 No. 3 Brussels I (jurisdiction in tort claims), because the respondent had used the GTC in Germany. The Court held that, pursuant to Art 4 (1) and Art 2 (3) lit. b Rome II-Regulation, the injunctive relief must be decided under German law. In cases of misuse of GTC, the place of harmful event in terms of Art 4 (1) Rome II-Regulation is the place where consumers are affected by the GTC. Therefore, German law on injunctions (UKlaG) was applicable. The Court further noted that, in the absence of a choice of law, pursuant to Art 5 (2) Rome I-Regulation, German law is the substantive law applicable to the examination of the GTC as the customers had their habitual residence in Germany (lex causae for contract law). The court stated that the clause was void given the fact that it violated consumer rights.