Bundesgerichtshof; 2021-02-10; KZR 66/17
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2021:100221UKZR66.17.0
Date: 2021-02-10
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82021DE0210(51)_ENG_SUMJURE
JURE summary
JURE summary
The operator of a hotel in Schleswig-Holstein (hereinafter the ‘plaintiff’) filed an action against the operator of the hotel booking platform ‘booking.com’ domiciled in the Netherlands (hereinafter the ‘defendant’) seeking the issuance of a cease-and-desist order.
The plaintiff, who was marketing its hotel via the defendant’s platform, argued that the conduct of the defendant as a company having the dominant position on the market represented an unreasonable obstruction due to its promotion of discounted prices without any agreement with the plaintiff, the limitation of contact possibilities between the parties to the accommodation contract concluded via the platform and also with regard to the amount of commission paid to the defendant in order to get better search results on the platform.
As the court seised, the Landgericht Kiel (hereinafter ‘the Court of First Instance’) dismissed the action, citing the lack of local and international jurisdiction. The appeal lodged by the defendant with the Schleswig-Holsteinisches Oberlandesgericht (hereinafter ‘the Court of Appeal’) was unsuccessful. Neither the jurisdiction according to the place of performance under Article 7(1) of the Brussels I Regulation (recast) (1) nor the jurisdiction according to the place of the harmful event under Article 7(2) of the Brussels I Regulation (recast) could be established. Therefore, the question of whether the parties had concluded an effective agreement on the place of jurisdiction for the courts in Amsterdam was irrelevant.
The revision filed by the plaintiff with Bundesgerichtshof (hereinafter ‘the Supreme Court’) was successful.
The Supreme Court found that the Court of Appeal incorrectly denied the jurisdiction according to the place of the harmful event under Article 7(2) of the Brussels I Regulation (recast). Contrary to the opinion of the Court of Appeal, the existence of the contractual relationship between the plaintiff and the defendant did not exclude the qualification of the claim pursued by the action as being a tortious claim.
The effectively concluded agreement on the place of jurisdiction was not contrary to the claims pursued by the plaintiff as it applied solely to contractual disputes with the exception of disputes regarding payment and invoicing. The subject-matter of the dispute was, however, the alleged abuse of the dominant market position on the part of the defendant under competition law, i.e. the claims pursued by the action were not of a contractual nature.
The Supreme Court annulled the decision of the Court of Appeal and referred the case back to the Court of Appeal for a new hearing and decision.
(1) 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.