Bundesgerichtshof; 2016-01-28; I ZR 60/14
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2016:280116:UIZR60.14.0
Date: 2016-01-28
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82016DE0128(52)_ENG_SUMJURE
JURE summary
JURE summary
The case dealt with by the Bundesgerichtshof (hereinafter ‘the Supreme Court’) concerned the General Terms and Conditions of a German crane company (hereinafter ‘the GTC’) regarding the effectiveness of a provision stipulating the responsibilities of the customer with respect to the stability of the building ground for the agreed location of a crane.
A crane company and a machine insurance company, both domiciled in Germany (hereinafter ‘the plaintiffs’) filed an action against a company domiciled in the Netherlands (hereinafter ‘the defendant’) seeking compensation for damage.
The defendant commissioned the crane company to transport an oven and two steel constructions by crane onto an inland vessel. The crane company accepted the job on the basis of its GTC stipulating that the customer bore unlimited responsibility for the ground to be fit for purpose. The envisaged place for the crane to be used had been initially inspected by an employee of the crane company. Due to a collapse of the ground caused by an undetected hollow space underground, the plaintiffs suffered injuries. In order to achieve compensation for damage, they sued the defendant in the Landgericht Hanau (hereinafter ‘the Court of First Instance’) which dismissed the action.
Subsequently, the plaintiffs pursued their claim further by lodging an appeal with the Oberlandesgericht Frankfurt am Main (hereinafter ‘the Court of Appeal’). The Court of Appeal modified the decision of the Court of First Instance and ordered the defendant to pay a partial amount of the requested sum. Both the defendant and the plaintiffs filed admissible revisions against this decision.
The international jurisdiction of the German courts followed from Article 23(1) of the Brussels I Regulation (1) due to the fact that the GTC stipulated the registered office of the crane company to be the place of performance. Under Article 66 thereof, the Brussels I Regulation (recast) (2) was not applicable. Under Article 3(1)(1) of the Rome I Regulation (3), German law was applicable due to the fact that it had been stipulated in the GTC.
When applying German law, the Supreme Court found that the part of the GTC stipulating the unlimited responsibility had been ineffective. As a matter of principle, the crane company was responsible for inspecting whether the respective ground was acceptable for the crane to be used on. 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) 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 (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.
(3) 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).