LG München; 2017-08-11; 33 O 8184/16
Decision by national courts in the field of European Union law — ECLI:DE:LGMUEN1:2017:0811.33O8184.16.0A
Date: 2017-08-11
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82017DE0811(51)_ENG_SUMJURE
JURE summary
JURE summary
A hotel operator domiciled in Germany (hereinafter ‘the plaintiff’) brought an action against a booking portal operator domiciled in Massachusetts, USA (hereinafter ‘the defendant’) seeking that the defendant desist from its actions, remove information from the platform and refund costs.
The booking portal contained several hotel reviews uploaded by users which were accessible worldwide and contained untrue information regarding the plaintiff, damaging its reputation substantially. The defendant did not meet the request made by attorney of the plaintiff to remove the respective reviews.
According to the plaintiff, the international jurisdiction of the seised Landgericht München I (hereinafter ‘the Court of First Instance’) followed from Article 32 ZPO (1). The consequences of the unlawful action (violation of personal rights) were noticeable also in Munich due to the fact that the respective reviews were also available on the internet in Munich. The defendant was using a Germain domain and approached its customers in German language.
The defendant considered the action inadmissible due to the lack of international jurisdiction of the Court of First Instance. The defendant claimed that based on the general terms and conditions of use, the parties had agreed that the exclusive subject-matter and local jurisdiction would be held by the courts in Massachusetts, USA. The agreement on the place of jurisdiction was effective under Article 38(1) ZPO and fulfilled the preconditions required under Article 40 ZPO, was applicable to the case and was admissible and enforceable under the agreed law of Massachusetts, USA. In addition, the plaintiff also stated that any possible claims of the plaintiff were prevented by the agreed exclusion of liability in the first place.
The Court of First Instance found itself not to be competent due to a lack of jurisdiction.
The agreement on the place of jurisdiction was effective. The applicable law regarding the place of jurisdiction was to be determined under Article 3(1) of the Rome I Regulation (2). However, having regard to cancelation of Articles 27 ff. EGBGB (3) in relation to the Rome I Regulation and having regard to the fact that Article 25 of the Rome I Regulation (recast) (4) was neither directly nor analogically  applicable to this case where the jurisdiction of the German courts had been excluded in favour of the courts of a third state, the Rome I Regulation was the applicable legal basis regarding the place of jurisdiction.
The Court of First Instance dismissed the action of the plaintiff.
(1) Zivilprozessordnung (Code of Civil Procedure).
(2) Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).
(3) Einführungsgesetz zum Bürgerlichen Gesetzbuche (Introductory Act to the Civil Code).
(4) 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.