Opinion of the Advocate General — ECLI:EU:C:2024:219
Date: 2024-03-07
Language of the case: German
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Germany

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Translation C-774/22 – 1 
Case C-774/22 
Request for a preliminary ruling 
Date lodged: 
21 December 2022 
Referring court: 
Amtsgericht Nürnberg (Germany) 
Date of the decision to refer: 
7 December 2022 
Applicant: 
JX 
Defendant: 
FTI Touristik GmbH 
  
Amtsgericht Nürnberg (Local Court, Nuremberg, Germany) 
[…] 
In the case of 
JX, […] Nuremberg 
– Applicant – 
[…] 
v 
FTI Touristik GmbH, […] Munich 
– Defendant – 
[…] 
EN 
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concerning a claim, 
the Local Court, Nuremberg […], on 7 December 2022, made the following 
Decision: 
I. The proceedings are stayed. 
II. The following question is referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 19(3)(b) of the Treaty on 
European Union and Article 267 of the Treaty on the Functioning of the 
European Union: 
Is Article 18(1) of 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 
(Article 18(1) of the Brussels I Regulation) to be interpreted as meaning 
that, in addition to providing for international jurisdiction, the rule also 
concerns a provision on the territorial jurisdiction of national courts in 
matters relating to a travel contract where both the consumer, as a traveller, 
and the other party to the contract, the tour operator[,] have their seat in the 
same Member State, but the travel destination is situated not in that Member 
State but abroad (so-called ‘false internal cases’) with the consequence that 
the consumer can make contractual claims against the tour operator 
supplementing national provisions on jurisdiction at the court of his or her 
place of residence? 
Grounds: 
1 I. The applicant claims from the defendant, a tour operator established in Munich, 
payment of compensation amounting to EUR 1,499.86 on account of the fact that 
he was not adequately informed of the necessary entry and visa requirements. 
2 The applicant booked a package tour with the defendant through the travel agency 
[…] [in] Nuremberg on 15 December 2021, the travel agent having acted as an 
intermediary in the conclusion of the contract between the applicant, a traveller, 
and the defendant as a tour operator. It is undisputed that the travel agency is not 
itself a contracting partner, and is also not a branch of the defendant. The contract 
between the parties related to a comprehensive package of travel services. 
3 The applicant, who himself was residing in […] Nuremberg at the time the 
contract was concluded, and who continues to reside there, brought the action 
before the Local Court, Nuremberg. 
4 Taking the view that the local court seised had territorial jurisdiction, the applicant 
refers to Articles 17 and 18 of 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 (‘the 
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Brussels I Regulation’). It was only by way of alternative that an application for 
referral was made to the Amtsgericht München (Local Court, Munich, Germany), 
at which the defendant has its general place of jurisdiction under national law 
(Paragraphs 12, 17(1) of the Zivilprozessordnung (German Code of Civil 
Procedure, ‘ZPO’)). 
5 The defendant contests the territorial jurisdiction of the Local Court, Nuremberg 
and contends that the action should be dismissed. It argues that the jurisdiction of 
the Local Court, Nuremberg does not derive from the Brussels I Regulation since 
that regulation does not apply to purely internal situations such as those in the 
present case, where the traveller and the tour operator are domiciled in the same 
country. A sufficient foreign element does not exist, since that would require the 
contracting parties to belong to different Member States, as is clear from the 
terminology of Article 16 of the Brussels I Regulation. Furthermore, no 
jurisdiction of residence follows from Article 18(2) of the Brussels I Regulation. 
Consequently, all the contracts to which a consumer is a party referred to in 
Article 15 of the Brussels I Regulation now give jurisdiction to that consumer’s 
domicile. The national provisions in accordance with Paragraphs 12 et seq. ZPO 
would thus be deprived of much of their scope and obsolete. 
6 II. The provisions of German law relevant to the resolution of the dispute, in the 
version applicable to the present case, are as follows: 
7 Zivilprozessordnung (ZPO) 
8 Paragraph 12 General place of jurisdiction; concept 
9 The court at which a person has his general place of jurisdiction shall have 
jurisdiction for all actions brought against him, unless exclusive jurisdiction has 
been established for an action. 
10 Paragraph 17 – General place of jurisdiction of legal persons 
11 (1) The general place of jurisdiction of the municipalities and corporations, as 
well as those companies, cooperatives or other associations and those foundations, 
institutions and pools of assets which may be sued as such shall be determined by 
their domicile. Unless otherwise specified, the place where the administration is 
carried out shall be deemed to be the domicile. 
12 (…) 
13 Paragraph 21 – Special place of jurisdiction for branch establishments 
14 (1) Where, for the purpose of operating a factory or carrying on a trade or other 
business, a person has a branch establishment from which business is conducted 
directly, any action against him relating to the commercial operation of the branch 
establishment may be brought against him before the court of the place where the 
branch establishment is situated. 
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15 (…) 
16 Paragraph 29 – Special place of jurisdiction for the place of performance 
17 (1) For disputes arising from a contractual relationship and relating to the 
existence of the latter, the court of the place where the obligation at issue is to be 
performed shall have jurisdiction. 
18 (…) 
19 [Provision on the staying of national proceedings] […] 
20 […] 
21 […] 
22 Paragraph 281 – Referral in the event of lack of jurisdiction 
23 (1) If it must be found that the court lacks jurisdiction on the basis of the 
provisions on the territorial or substantive jurisdiction of the courts, the court 
seised must declare, by order, at the request of the applicant, that it lacks 
jurisdiction and must refer the case to the court having jurisdiction, provided that 
the court having jurisdiction can be determined. Where several courts have 
jurisdiction, the matter shall be referred to the court chosen by the applicant. 
24 (2) Applications and declarations concerning the jurisdiction of the court may be 
made before the registrar. The order shall not be open to appeal. The dispute shall 
be brought before the court designated in the order as soon as the case files are 
received. The order shall be binding on that court. 
25 (…) 
26 Paragraph 513 – Grounds of appeal 
27 (…) 
28 (2) The appeal may not be based on the fact that the court at first instance wrongly 
assumed that it had jurisdiction. 
29 Grundgesetz für die Bundesrepublik Deutschland (Basic Law for the Federal 
Republic of Germany, ‘the GG’) 
30 Article 101 
31 (1) Exceptional courts are not permitted. No one may be removed from the 
jurisdiction of his lawful judge. 
32 (…) 
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33 III. 1. The referring court already discussed the question of law with the 
representatives of the parties before the public hearing of 2 November 2022 and at 
the public hearing. 
34 2. The question of whether the Local Court, Nuremberg is required to decide on 
the merits of the applicant’s claims depends decisively on whether the Local 
Court, Nuremberg has territorial jurisdiction for the present dispute. 
35 3. According to the national rules of the Federal Republic of Germany, the Local 
Court, Nuremberg does not have territorial jurisdiction. 
36 4. According to the general rules of jurisdiction in Paragraphs 12 and 17 ZPO, 
even if the applicant is a consumer and the defendant is an undertaking taking the 
legal form of a limited liability company (GmbH), the court of the domicile of the 
company, as the defendant, has territorial jurisdiction. The defendant’s 
administration and thus its domicile is in Munich, meaning that the Local Court, 
Munich would have territorial jurisdiction pursuant to Paragraphs 12 and 17 ZPO. 
37 5. Nor does the Local Court, Nuremberg, have special jurisdiction which would 
compete with the rules on general jurisdiction. It is not apparent from 
Paragraph 21(1) ZPO that the Local Court, Nuremberg has territorial jurisdiction, 
since the travel agency […] [in] Nuremberg is indisputably not a branch 
establishment of the defendant. 
38 6.The territorial jurisdiction of the Local Court, Nuremberg also does not derive 
from Paragraph 29 ZPO, since there is no indication whatsoever that the 
defendant’s obligations under the comprehensive package of travel services 
contractually agreed with the applicant would have had to be provided within the 
area of jurisdiction of the Local Court, Nuremberg. While it is true that there is an 
airport within the jurisdiction of the Local Court, Nuremberg, the applicant 
booked the journey with Frankfurt am Main as the departure point, so jurisdiction 
does not follow from this, even if the amended case-law (Bayerisches Oberstes 
Landesgericht (Bavarian Supreme Court, Germany), order of 22 July 2021, 102 
AR 51/21 – juris) is based on the premiss that territorial jurisdiction under 
Paragraph 29 ZPO must also be based on the departure point from which the 
provision of services begins. 
39 7. A territorial jurisdiction of the Local Court, Nuremberg would derive solely 
from application of Article 18(1) of 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 
(Brussels I Regulation). 
40 8. The national case-law and literature contain differing views on the question of 
whether the rule in Article 18(1) of the Brussels I Regulation is to be interpreted 
as meaning that, in cases where a consumer domiciled in a Member State has 
concluded a contract for a trip to a foreign destination with a tour operator 
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domiciled in the same Member State (so-called ‘false internal cases’), it opens the 
jurisdiction of the consumer’s domicile. 
41 9. According to what appears to be the prevailing view taken in the case-law, the 
application of the Brussels I Regulation required a cross-border element in the 
sense that consumers and contracting parties must be domiciled in different 
Member States of the European Union. On the other hand, the international 
element required for the applicability of the Brussels I Regulation did not exist if 
the facts of the case had a different kind of international element, for example, 
both parties were domiciled in the same Member State and the international 
element existed only because the travel destination was located abroad. This, for 
example, is substantiated by the Landgericht Nürnberg-Fürth (Regional Court, 
Nuremberg-Fürth, Germany) in its decision of 30 April 2015, file reference 3 O 
2749/15, in the following terms: First, it was clear from the recitals of the 
regulation that the exception to the principle that jurisdiction was based on the 
defendant’s domicile (recital 15) in the case of consumer contracts existed only in 
order to protect the consumer by rules of jurisdiction more favourable to his 
interests than the general rules (recital 18). It followed from this that such special 
protection was necessary only where, as a result of inter-Community trade 
between Member States within the European Union, there were burdensome 
distances between the consumer’s domicile and the court that actually had 
jurisdiction. However, if the international element resided solely in the travel 
destination, there was therefore also no need to apply the second alternative of 
Article 18(1) of the Brussels I Regulation. Secondly, account must be taken of the 
fact that the provisions of the Brussels I Regulation must be interpreted 
restrictively and that there is therefore no need to apply it where both parties are 
established in the same Member State and a foreign element arises only from the 
travel destination. 
42 10. Moreover, this was the view argued by the case-law of the Court of Justice of 
the European Union on Council Regulation (EC) No. 44/2001 of 22 December 
2000 (cf. […] [(judgments of 19 December 2013, Corman-Collins, C-9/12, 
EU:C:2013:860, and of 17 November 2011, Hypoteční banka, C-327/10, 
EU:C:2011:745)], which, it considers, should also apply to this regulation. On this 
subject, the Landgericht Mainz (Regional Court, Mainz, Germany) already states 
in its [order for reference in Case C-317/20] […] that the cited view refers to 
recital 4 of the preamble, according to which that regulation confines itself to the 
minimum required in order to achieve the regulation’s objectives and does not go 
beyond what is necessary for that purpose. However, the fundamental idea behind 
the Brussels I Regulation was to lay down rules for international jurisdiction in 
order to ensure that parties to a dispute had a secure jurisdiction available to them 
and were not forced to seek legal protection in another Member State or a third 
country. It followed from this that the regulation did not, in principle, seek to 
interfere with national rules of jurisdiction, provided that they ensured adequate 
legal protection in the State of which the party was a national. Accordingly, in the 
event that a consumer of a Member State brought an action against a contracting 
partner from the same Member State, the application of Articles 17 and 18 of the 
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Brussels I Regulation was precluded by the fact that both parties were domiciled 
in Germany and a cross-border element could not be established in any other 
significant way. 
43 11. The purpose of Articles 15 and 16 of Regulation (EC) No 44/2001 of 22 
December 2000 was to protect the consumer concerned from having to be 
subjected to an unknown legal system with a language with which he may not be 
familiar, but not to override the rules of German civil procedure in purely internal 
disputes without any link with Community law. Nor did the recasted Article 18(1) 
of the Brussels I Regulation intend to regulate German procedural law in purely 
internal disputes. The addition introduced by the recasted Article 18(1) of the 
Brussels I Regulation, pursuant to which a consumer may bring proceedings 
against the other party to a contract in the courts for the place where the consumer 
is domiciled ‘regardless of the domicile of the other party’, did not lead to a 
different assessment. The addition did not dispense with the required international 
element of the dispute, but must be interpreted as meaning that the addition 
became relevant only in legal disputes in which the defendant was not domiciled 
in a Member State, that is to say in which he was domiciled in a third country. The 
addition did not intend to create a new jurisdiction for consumer disputes, but only 
a special jurisdiction for situations in which the defendant was domiciled in a third 
country. Otherwise, the result would be that all the contracts referred to in Article 
17 of the Brussels I Regulation to which a consumer was a party would now 
justify jurisdiction for the consumer’s domicile. The provisions of German civil 
procedure on the determination of jurisdiction pursuant to Paragraph 12 et seq. 
ZPO would thus be deprived of a large part of their scope of application. 
44 12. There would be an insufficient foreign element because, at the very least, a 
normative foreign element is not identifiable. The basis is the contractual 
relationship on travel between two legal persons residing in the national territory. 
Any disruption to the obligations assumed, including abroad, would only be a de 
facto foreign element which had an effect on the pre-existing legal relationship, 
which was originally a national one, and is therefore merely a consequence of the 
contractual agreement. 
45 13. On the other hand, an important voice in the academic literature […] inclines 
to the view that the applicant and defendant should not necessarily have to be 
domiciled in two different Member States in order for there to be a cross-border 
element. In travel disputes, the necessary foreign element is also present where the 
consumer and tour operators have a domestic domicile or registered office, but it 
is envisaged that the travel will take place abroad […]. That could not be derived 
from the wording of Article 18(1) of the Brussels I Regulation, whether in the 
English, French or German versions. Instead, when recasting Article 18 of the 
Brussels I Regulation, the European legislature clarified – in contrast to Article 16 
of Regulation (EC) No 44/2001 of 22 December 2000 – that the consumer may 
bring proceedings in the jurisdiction of his domicile, regardless of the trader’s 
domicile. 
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46 14. Furthermore, in Case C-317/20, the European Commission already ruled on 
that question of law relating to other facts on 8 December 2020. With reference to 
Article 24 and Article 25 of the Brussels I Regulation, it follows that, for the 
purposes of the application of that regulation, there is no need to rely solely on the 
residence of persons or on the internal market. It is not possible to distinguish 
between a substantive and a normative foreign element. A foreign element may be 
based on information specific to the particular case, such as the travel destination 
and place of performance of the contractual obligation […]. 
47 IV. 1. Courts of last instance are obliged to stay the proceedings and refer the 
matter to the Court of Justice of the European Union if a question relevant to the 
decision to be given in the case is raised on the interpretation of Community law 
(third paragraph of Article 267 TFEU). A court is deemed to be a court of last 
instance obliged to refer a matter if there is no right of appeal against its decision 
in the specific case […]. 
48 2. The Local Court, Nuremberg has jurisdiction in the last instance for the 
decision on whether or not it has territorial jurisdiction. 
49 3. Before examining the merits and amount of the claim, it is for the local court 
seised to ascertain of its own motion whether it has functional, substantive, 
territorial and international jurisdiction. […]. 
50 4. If the referring court, the Local Court, Nuremberg, held that it had territorial 
jurisdiction and, after examining the applicant’s claims, both regarding their 
merits and the amount, awarded him compensation for the damage suffered as a 
result of the alleged lack of information on the entry requirements, that order 
would not be open to review with regard to the determination of territorial 
jurisdiction by the appellate court in accordance with Paragraph 513(2) ZPO, with 
the consequence that, if an interpretation of Article 18(1) of the Brussels I 
Regulation, as the provision on local jurisdiction, were not consistent with EU 
law, the applicant, in breach of the second sentence of Article 101(1) GG, would 
be irrevocably removed from the jurisdiction of his lawful judge. 
51 5. If the Local Court, Nuremberg held that it lacked territorial jurisdiction, it 
would be for that court to refer the case to the Local Court, Munich by order, in 
accordance with Paragraph 281(1) ZPO upon the referral request made in the 
alternative by the applicant in respect of this case. That order would not be open to 
appeal; the Local Court, Munich would be bound by the decision of the Local 
Court, Nuremberg on its territorial jurisdiction pursuant to the second sentence of 
Paragraph 281(2) ZPO. 
52 6. Furthermore, the correct interpretation of EU law is not so obvious as to leave 
no scope for any reasonable doubt (‘acte clair’ within the meaning of the Cilfit 
case-law of the Court of Justice, […] judgment of 6 October 1982, Cilfit and 
Others, 283/81, EU:C:1982:335). 
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53 7. The question referred for a preliminary ruling has not yet been answered in the 
case-law of the Court of Justice of the European Union either. The referrals to the 
Court most recently known, […] by the Regional Court, Mainz) […] (Case 
C-317/20) and by the Amtsgericht Frankfurt (Local Court, Frankfurt, Germany) 
[…] (Case C-62/22) were settled by means of a declaration that there was no need 
to adjudicate and their removal from the register. The decision of the Court of 
Justice of the European Union […] [judgment of 14 November 2013, Maletic, 
C-478/12, EU:C:2013:735], which is cited in some of the national case-law, 
relates to Article 16 of Regulation (EC) No 44/2001 of 22 December 2000, the 
wording of which is not entirely identical to Article 18 of the Brussels I 
Regulation. Furthermore, that decision cannot be taken into consideration for the 
purposes of clarifying the question referred since the foreign element in that case 
resulted from the fact that the travel agency was established in a different Member 
State to that of the consumer and tour operator; that is already different in this 
case. 
54 8. Thus, the Local Court, Nuremberg is required to refer of its own motion to the 
Court for a preliminary ruling the question stated in the operative part of the 
decision in accordance with Article 267(1)(a) and (3) TFEU and to stay the 
proceedings in the legal dispute submitted until the conclusion of the proceedings 
before the Court. 
[…] 
[…]