EUPillar LG Frankfurt a.M., 29.03.2012

Summary

The parties – a German consumer protection association as applicant and a British airline as respondent – argue about the conformity of general terms and conditions (GTC) used by the respondent with German consumer protection laws. The GTC are available in German language on the defendants’ website. The applicant claims for injunctive relief concerning a particular term roughly saying that if the customer doesn’t use the Flight Coupons in the prescribed order, his/her ticket loses validity and won’t be accepted. Another term obliges the customers to compensate the price spread between the actually booked and the originally scheduled flight in order to be transported. The Court exercised jurisdiction according to Art 5 No. 3 Brussels-I-Regulation because the defendant’s GTC were displayed in German. Pursuant to Art 4 (1) Rome-II-Regulation, the law applicable to a non-contractual obligation arising out of a tort shall be the law of the country in which the damage occurs. The Court assumed this in the dispute. 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, or are likely to be, affected by the GTC. Therefore, the court applied German law in shape of the German Code on Injunctions (UKlaG). The Court further noted that, in the absence of a choice of law, pursuant to Art 5 (2) Rome I-Regulation, German law was the substantive law applicable for the judicial control of the GTC as the customers had their habitual residence in Germany (lex causae for contract law). The court stated the clauses were void as they violated consumer rights.