LG Kiel; 2016-11-23; 14 HOK 108/15 Kart
Decision by national courts in the field of European Union law — ECLI:DE:LGKIEL:2017:0127.14HOK108.15KART.00
Date: 2016-11-23
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82016DE1123(51)_ENG_SUMJURE
JURE summary
JURE summary
The operator of a hotel in Germany (hereinafter ‘the plaintiff’) filed an action against a company established under Dutch law (hereinafter ‘the defendant’) operating a hotel booking platform seeking the issuance of a cease and desist order.
The parties to the dispute entered into a hotel agreement under which the defendant brokered accommodation agreements between the plaintiff and hotel guests for a commission. The plaintiff claimed that the defendant was abusing its dominant position in the market of brokerage services for hotels in Europe and the defendant marked the agreed prices as reduced prices without the prior consent of the plaintiff.
The court seised, the Landgericht Kiel (hereinafter ‘the Court of First Instance’) dismissed the action as inadmissible.
The parties to the dispute had effectively concluded an agreement regarding the place of jurisdiction under Article 23 of the Brussels I Regulation (1) stipulating that any actions were to be filed with the competent court in Amsterdam under Dutch laws.
With respect to the agreed place of jurisdiction between the plaintiff and the defendant, a practice under Article 23(1)(b) of the Brussels I Regulation is to be assumed. The precondition for the existence of such practice is that the parties carry out such practice and it is based on a mutual understanding. This was the case in this dispute. The plaintiff had not contested the general terms and conditions of the defendant which were available online nor had he terminated the agreement.
The possibility to make oneself familiar with general terms and conditions online is in today’s business world common and therefore not surprising for the plaintiff. The agreed place of jurisdiction also applies for claims made by the plaintiff under anti-trust law.
The Court of First Instance dismissed the action of the plaintiff.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.