LG Hamburg; 2015-05-21; 323 O 307/13
Decision by national courts in the field of European Union law — ECLI:DE:LGHH:2015:0521.323O307.13.00
Date: 2015-05-21
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82015DE0521(51)_ENG_SUMJURE
JURE summary
JURE summary
The dispute dealt with by the Landgericht Hamburg (hereinafter ‘the Court of First Instance’) concerned unsuccessful hair transplantation in Poland and its consequences. The parties to the dispute were a plaintiff domiciled in Germany and a defendant domiciled in Poland.
The plaintiff underwent hair transplantation in Poland. The result did not fully correspond to the expected result. The plaintiff claimed to have been informed insufficiently due to the fact that Mr R, who was not a doctor, could not provide any effective explanation and Dr C provided explanation solely in relation to the course of surgery and the after-treatment but not regarding the possible risks. In particular, the plaintiff had not been informed about the risks connected with scars correction. The plaintiff demanded to be refunded the treatment costs and paid compensation for pain and suffering. The defendant applied for the action to be dismissed.
The international jurisdiction of the Court of First Instance under Article 15 of the Brussels I Regulation (1) followed from the consumer character of the matter.  According to Article 15(1)(c) of the Brussels I Regulation, a consumer character is given when a contract is concluded by a person, the consumer, for a purpose that can be regarded as being outside his trade or profession. Therefore, the plaintiff was a consumer.
Under Article 6(1) of the Rome I Regulation (2), the solely applicable law was German law. The plaintiff was entitled to receive compensation for pain and suffering due to the breach of information obligations under Articles 280(1) and 253(2) BGB (3).
The Court of First Instance found the conducted hair transplantation to have been in breach of law due to insufficient clarification. Within the reasoning of its decision, the Court of First Instance stated that a clarification of the treatment carried out by a member of staff who was not a doctor was generally inadmissible and that clarification could only be effective if provided in such a timely manner that the patient had enough time to form a free decision. A clarification provided directly before a treatment abroad which was not of a minor nature, as was the case in this dispute, could not meet these requirements.
The Court of First Instance ordered the defendant to compensate the plaintiff for future material damage and the currently unpredictable non-material damage incurred to the plaintiff by undergoing a hair operation which was in breach of law.
(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.
(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) Bürgerliches Gesetzbuch (German Civil Code).