Bundesgerichtshof; 2019-10-17; Telekommunikationsunternehmen; III ZR 42/19
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2019:171019UIIIZR42.19.0
Date: 2019-10-17
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82019DE1017(51)_ENG_SUMJURE
JURE summary
JURE summary
A telecommunication company domiciled in Bonn (hereinafter ‘the defendant’) filed a counter action within revision proceedings against a telecommunication company domiciled Washington D.C., the United States (hereinafter ‘the plaintiff’) seeking compensation for damage due to the breach of an agreement on the place of jurisdiction.
The plaintiff and the legal predecessor of the defendant concluded an agreement, in which they agreed to pick up the data traffic of the other party at the so-called peering points, to transfer it further within their network to connected clients and to provide for the requested transfer capacity at the respective peering point within their network. Article 14(3) of the agreement stipulated Bonn as the place of jurisdiction and German law as the applicable law (1).
After the failure of discussions regarding enhancing the transfer capacity in favour of the plaintiff, free of charge, due to the fact that the plaintiff uploaded larger data volumes to the network of the defendant than vice versa, the plaintiff filed an action against the defendant in a Federal Court in the United States (hereinafter ‘the District Court’) seeking to be provided with larger capacity. The District Court dismissed the action stating a lack of international jurisdiction. It did not order the plaintiff to refund the defendant the costs of the legal representation in the amount of USD 196 118.03.
The Landgericht Bonn (hereinafter ‘the Court of First Instance’) upheld the defendant’s counter action.
Based on an appeal of the plaintiff, the Oberlandesgericht Köln (hereinafter ‘the Court of Appeal’) changed the decision of the Court of First Instance and dismissed the action. Despite Bonn having been agreed as the exclusive place of jurisdiction in the agreement, the plaintiff was not obliged to pay compensation for damage. An obligation under substantive law may not be established by a sole need for a compensation claim without the existence of a primary claim.
The revision of the defendant filed with the Bundesgerichtshof (hereinafter ‘the Supreme Court’) was found justified.
The international jurisdiction of the German courts followed from Article 25 of the Brussels I Regulation (recast) (2).
By filing an action with the District Court, the plaintiff breached its obligations, and the defendant was entitled to receive compensation under Article 280(1) of the Bürgerliches Gesetzbuch (the Civil Code) in connection with Article 14(3)(2) of the agreement.
Upon concluding the agreement on the place of jurisdiction, both parties expressed their will to make legal disputes predictable both from the perspective of substantive and procedural law. Therefore, the place of jurisdiction was to be understood as exclusive.
The Supreme Court annulled the decision of the Court of Appeal and referred the case back for a new hearing and decision.
(1) ‘This agreement shall be subject to the law of the Federal Republic of Germany. Bonn shall be the place of jurisdiction.’
(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.