BGH; 2018-12-11; KZR 66/17
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2018:111218BKZR66.17.0
Date: 2018-12-11
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82018DE1211(51)_ENG_SUMJURE
JURE summary
JURE summary
In her claim, the operator of a hotel in Schleswig-Holstein (hereinafter ‘the plaintiff’) requested an injunction for what was from her point of view unlawful conduct by the hotel booking platform operated in the Netherlands booking.com (hereinafter ‘the defendant’).
The plaintiff, who uses the intermediary services of the defendant for hotels, accuses the defendant of abusing its dominant position in the market to the detriment of the plaintiff.
The Landgericht Kiel dismissed the claim due to its lack of international and local jurisdiction.
The plaintiff’s appeal to the Schleswig-Holstein Oberlandesgericht was unsuccessful. Neither the place of jurisdiction for the place of performance pursuant to Article 7(1) of the Brussels I Regulation (recast) (1) nor the place of jurisdiction for the tort pursuant to Article 7(2) of this Regulation is given. Therefore, it is insignificant whether the parties came to an effective agreement on jurisdiction contained in the general terms and conditions with Amsterdam as the place of jurisdiction.
The appeal proceedings initiated by the plaintiff at the Bundesgerichtshof (hereinafter ‘the Supreme Court’) were suspended.
The Supreme Court referred to the Court of Justice of the European Union the question of whether Article 7(2) of the Brussels I Regulation (recast) is to be interpreted as meaning that jurisdiction for matters relating to tort or delict exists in respect of an action seeking an injunction against specific practices if it is possible that the conduct complained of is covered by contractual provisions, but the applicant asserts that those provisions are based on an abuse of a dominant position on the part of the defendant.
(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.