Germany, District Court of Berlin, 30 April 2019 15 O 92/12

Identification of the case

• BGB § 307(1), (2) Nr. 1
• BDSG §§ 4, 4 a
• TMG§§ 12 seq.
• TKG § 94
• UWG § 7(2)

• EuGVVO Art. 5 Nr. 3
• Rom I-VO Art. 6

Summary of the case

The plaintiff is a consumer protection association and requests an injunction against intransparent clauses of the defendant’s terms and conditions. The defendant sells computer hard and communication devices. She also operates a telemedia service which is available in German at ‘www.apple.com/de’. On this website, the defendant publishes her terms and conditions as well as its ‘Apple privacy policy’. The plaintiff regards clauses of the privacy policy and the terms and conditions as problematic under § 307 BGB and requests an injunction against their use.

• Civil judicial enforcement
• Collective enforcement - Consumer association's action

Civil injunction against clauses of terms and conditions

German courts have jurisdiction under art. 5 nr. 3 Brussels-I-Regulation. The district court considers that attacks on a national legal order through abusive clauses in terms and conditions constitute a similar action within this article. The jurisdiction of German courts arises from the claim of the plaintiff that the defendant uses illegal clauses in its terms and conditions in Germany. According to art. 6 Rome-I-Regulation, German law is applicable to the terms and conditions as long as the activity of the defendant is aimed at consumers, which are domiciled in Germany. The court underscores its decision that the terms and conditions contain no choice of law clause. Hence, German law is applicable to German consumers. In deciding the subject-matter of the case, the district court holds that the clauses of a privacy policy also constitute terms and conditions. Under § 305 German Civil Code, terms and conditions are pre-formulated conditions for numerous contracts which one party stipulates to the other. On the basis of the presentation of the privacy policy as part of the order process (as one click-wrapping option with the terms and conditions), the court adopts the least consumer-friendly interpretation of that clause. It holds that consumers would assume the privacy policy to be part of the terms and conditions of the order. Consequently, the privacy policy forms part of the terms and conditions and is subject to the same control.

Additional notes on the decision

Regulation (EU) 2016/679 entailed a revision of the Bundesdatenschutzgesetz (BDSG, Federal Data Protection Act) and the Datenschutzgesetz (Datenschutzgesetz). According to the new § 1 BDSG, the act is applicable to private relationships when data is processed or used within the German borders.

The impact of the case on national case law is still unclear as there is a split in German courts regarding the applicability of German law. Unlike the district court Berlin, the High Administrative Court Schleswig held regarding Facebook (which is also established in Ireland) that Irish law is applicable. (OVG Schleswig 4 MB 11/13, 22.04.2013)