KG Berlin; 2018-11-09; 5 U 185/17
Decision by national courts in the field of European Union law — ECLI:DE:KG:2018:1109.5U185.17.00
Date: 2018-11-09
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82018DE1109(51)_ENG_SUMJURE
JURE summary
JURE summary
The case concerns the plaintiff's right to injunctive relief against a defendant on account of customer telephone numbers incorrectly obtained in accordance with the rules and on account of the clause concerning the general exclusion of the right of revocation in contracts for the dispatch of medicines sold online.
The defendant is a mail-order pharmacy based in the Netherlands, which also supplies medicines to Germany and which completely excluded medicines from the right of withdrawal in its general terms and conditions. In addition, customers were not asked to provide any telephone numbers for online orders.
The plaintiff brought his action before the Landgericht Berlin (hereinafter ‘the Court of First Instance’), which accepted the international jurisdiction of the German courts under the Brussels I Regulation (recast) (1) and applied German law under the Rome II Regulation (2) . Consequently, the defendant was ordered to cease and desist on a fair trading basis.
As a result, the defendant filed an appeal against the first instance judgment with the Kammergericht Berlin (hereinafter ‘the Court of Appeal’), requesting the modification of the first instance judgment and the dismissal of the action. The Court of Appeal dismissed the appeal, confirmed the first instance judgment as provisionally enforceable and did not allow the appeal. In addition, it obliged the defendant to request the customer's telephone number for free consultations before sending medicines ordered online. The clause on the general exclusion of the right of revocation was declared invalid, as the exception under § 312g(2)(3) of the BGB (3) could not be invoked in this case.
(1) 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.
(2) Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II).
(3) Bürgerliches Gesetzbuch (Civil Code).