EUPillar BGH, 9.7.2009

Summary

The claimant is a consumer protection association and brings an action claiming injunctive relief concerning the use of abusive general terms and conditions (GTC) by the respondent, a Latvian aviation company. The German Federal Court of Justice exercised its jurisdiction pursuant to Art 5 Nr. 3 Brussels I as the respondent had used the GTC in Germany. The court then noted that, pursuant to Art 4 (1) Rome II-Regulation, the applicable substantive law for the injunctive relief was German law on injunctions (UKlaG). The court stated: In cases of misuse of GTC, the place of the harmful event is the place of usage of GTC because it is usually the place where the consumers are affected. This result was also taken as a basis by Art 6 (1) Rome II-Regulation which, according to the BGH, must not be legally interpreted as exception but as clarification to Art 4 (1). For contracts being concluded before the Rome II-Regulation came into force, the same outcome is achieved by applying German autonomous conflict of law rules (Art 40 (1) EGBGB). The court further found: Contrary to the findings of the lower court of appeal, the applicable substantive law for the judicial control of the GTC must not necessarily be the same as for the injunctive relief. The BGH applied Latvian law as the applicable substantive law for contracts (lex causae) according to Art 28 (1) and 31 (1) EGBGB. The intended protection of consumers through the control of GTC cannot be interpreted as establishing a closer connection to the habitual residence of the affected consumers. The BGH remitted the case to the court of appeal by ordering that it shall apply Latvian law regarding the control of GTC. It stated that the lower instance should only exercise jurisdiction insofar as the tort was committed in Germany.