Oberlandesgericht Frankfurt ; 2019-11-07; rechtsfähiger Verband zur Förderung der gewerblichen Interessen des Handels mit E-Zigaretten; Marketplace-Betreiber; 6 U 61/19
Decision by national courts in the field of European Union law — ECLI:DE:OLGHE:2019:1107.6U61.19.00
Date: 2019-11-07
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82019DE1107(51)_ENG_SUMJURE
JURE summary
JURE summary
An association for promoting the business interests of the trade of electronic cigarettes (hereinafter ‘the plaintiff’) filed an action against a company of the X group domiciled in Luxembourg (hereinafter ‘the defendant’) who operated in the X marketplace for electronic cigarettes without having a subsidiary or business premises in Germany, claiming that the defendant was in breach of its registration duties under tobacco laws.
The Landgericht Frankfurt am Main (hereinafter ‘the Court of First Instance’) ordered the plaintiff to forbid sellers who were not registered with the competent authority under Article 22(1)(2) TabakerzG (1) to conduct cross-border distance selling of parts of electronic cigarettes to the consumers in the European Union through the online shop on the sales platform X.
Based on the objection, the Court of First Instance reviewed the case and maintained its preliminary injunction. The defendant lodged an appeal with the Oberlandesgericht Frankfurt am Main (hereinafter ‘the Court of Appeal’) which proved successful.
The international jurisdiction of the German courts followed from Article 7(2) of the Brussels I Regulation (recast) (2). The Court of First Instance was correct to assume that the international jurisdiction of the German courts for the present urgent procedure followed at least from Article 35 of the Brussels I Regulation (recast).
The defendant was correct to claim that a registration with the respective authority in just one federal state was sufficient. Contrary to the opinion of the plaintiff, the defendant as a seller with activities across the whole of Germany was not obliged to be registered in every single federal state.
The provisions of Article 22(1)(2) of the TabakerzG were to be interpreted to that extent that a registration in one federal state was sufficient for operating distance selling across all of Germany. The registration duty was not product-related but concerned sales modalities. Provision regarding sales modalities could prevent intra-community trade if their limiting effects were bigger for products from other Member States than for domestic products and the limitation had a larger impact on economic operators domiciled in other Member States than domestic economic operators.
Based on the appeal of the defendant, the Court of Appeal annulled the preliminary injunction. The application seeking the declaration of the preliminary injunction to be the final decision was dismissed.
(1) Gesetz über Tabakerzeugnisse und verwandte Erzeugnisse (Tobacco And Related Products Act).
(2) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.