OLG Köln; 2022-10-31; I-19 U 51/22
Decision by national courts in the field of European Union law — ECLI:DE:OLGK:2022:1031.19U51.22.00
Date: 2022-10-31
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82022DE1031(51)_ENG_SUMJURE
JURE summary
JURE summary
A German national (hereinafter ‘the plaintiff’) sought repayment relating to his participation in an online gambling website operated by the defendant. The plaintiff engaged with the site from 2014 to 2020. The defendant held a gambling license from a European country but lacked authorisation in Germany. The losses of the plaintiff amounted to almost EUR 600 000. He sued the defendant, arguing the former’s gambling activity was illegal in Germany with regards to the GlüStV (1).
The Landgerichts Bonn (hereinafter ‘the Court of First Instance’) denied his request. He appealed to the Oberlandesgericht Köln (hereinafter ‘the Court of Appeal’), who amended the lower decision and admitted the plaintiff’s claim.
The plaintiff argued that the contract was void pursuant to Article 134 of the BGB (2) in conjunction with Article 4(4) of the GlüStV, which prohibits the organisation and brokering of public games of chance on the Internet. The Court of Appeal agreed with the claim, reminding that the German Federal Court held that the interference of the prohibition norm set by Article 4(4) with the freedom to provide services under Article 56 of the Treaty on the Functioning of the European Union (3) is justified.
The Court of Appeal also held that the German courts have jurisdiction in the present case based on Article 17(1) of the Brussels I Regulation (recast) (4). The plaintiff is a consumer within the meaning of Article 18(1) of the same Regulation. The defendant also focuses its activities on Germany. The availability of his website in German is an indication that allows the assumption that the trader's activity is directed towards other Member States, as stated in Cases C-585/08 and C-144/09 (5). Therefore, the plaintiff can rightfully choose the place of jurisdiction at his domicile in accordance with Article 18(1) of the Brussels I Regulation (recast).
As to tortious claims asserted by the plaintiff, the jurisdiction of the German court can also be established through Article 7(2) of the Brussels I Regulation (recast). The place of the harmful event can be both the place where the damage occurred and the place of the event giving rise to the damage. The plaintiff substantiated that he gambled from his domicile, which is to be considered as both places.
In addition, the international jurisdiction in the present case is also established by the defendant's unrepentant admission as per Article 26(1) of the Brussels I Regulation (recast).
Besides, the Court of Appeal drew from Article 6(1) of the Rome I Regulation (6) the applicability of German law. The Court concluded that the contract stands between the plaintiff and the defendant rather than the other players. Accordingly, a consumer contract is governed by the law of the country in which the consumer has his habitual residence, provided that the trader directs his trade or profession to that country and the contract falls within the scope of that activity.
The Court of Appeal agreed that the defendant met these criteria when conveying an impression of legality. This was due to the German-language website and customer support team, EU license references, and endorsements by German athletes. These elements created the plaintiff's belief in the legality of the website.
(1) Glücksspielstaatsvertrag (Interstate Treaty on Gambling).
(2) Bürgerliches Gesetzbuch (Civil Code).
(3) Treaty on the Functioning of the European Union.
(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 (recast).
(5) Judgment of the Court of 7 December 2010, Peter Pammer v Reederei Karl Schlüter GmbH & Co. KG (C-585/08) and Hotel Alpenhof GesmbH v Oliver Heller (C-144/09), C-585/08 and C-144/09, ECLI:EU:C:2010:740.
(6) 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).