Germany, Higher Regional Court Frankfurt, 13 December 2018 16 U 15/18

Identification of the case

• § 4 a UKlaG

• Art. 3 Rome I Regulation, Art. 5 Rome I Regulation, § 5 Directive 93/13/EEC

Summary of the case

The defendant at the first instance is an airline company (established in England) with a .de-website for the booking of flights in German. The plaintiff is a consumer protection association which requests an injunction against the use of clause 29 of the company’s terms and conditions (ToC). Clause 29 determines that English and Welsh law is applicable to the transportation contracts. According to the consumer protection association, the lack of reference to art. 5(2) Rome-I-Regulation, and thereby the lack of reference to the free choice of applicable law, is detrimental to the protection of consumers. The court of first instance grants the injunction by applying the CJEU’s reasoning in C-191/15 regarding art. 6(1) Rome-I-Regulation analogously to art. 5(2) Rome-I-Regulation. The case of the OLG Frankfurt concerns the appeal of the defendant against the first instance decision.

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

Appeal against application for an injunction by consumer association.

The OLG Frankfurt refuses to apply the CJEU’s principles regarding art. 6 Rome-I-Regulation (developed in C-191/15) to passenger transport contracts and to a choice of jurisdiction under art. 5(2) Rome-I-Regulation. In its reasoning, the OLG Frankfurt focuses on the requirements of transparency and the wording of art. 5(2) Rome-I-Regulation.

Regarding transparency aspects, there is no reference to art. 5(2) Rome-I-Regulation necessary. The CJEU specifies the requirements for transparency and the comprehensibility of ‘choice of law’-clauses in C-191/15, and requires no ‘duty to transparency’ therein. Such a clause is only abusive when the company conveys the impression that its seat is in the country of the consumer. Either way, art. 6 Rome-I-Regulation is not applicable to pure transportation contracts under art. 6(4) Rome-I-Regulation. As a result, only art. 5(2) Rome-I-Regulation is applicable.

Due to the wording of art. 5(2) Rome-I-Regulation, the principles of art. 6 Rome-I-Regulation cannot be applied analogously. The EU legislator takes position by limiting the possibility of the choice of law. It considers that the available legal orders are not surprising or unfair in geographic terms and reasonable, even for weaker parties who might not be aware of the content of the ToCs. As a result, aspects of consumer protection cannot be invoked against ‘choice of law’-clauses. The OLG Frankfurt concludes that ‘choice of law’-clauses do not need to contain an additional warning regarding the limitation of the freedom of choice, as such a warning would simply repeat the text of the provision. Consequently, ‘choice of law’-clauses are admissible as part of the ToC of a transportation contract.

Thus, the OLG Frankfurt reverses the judgment of the first instance and approves the appeal.

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

• CJEU C-191/15, Amazon

Conform interpretation with EU law as interpreted by the CJEU.

To solve a conflict between different trends of national caselaw.

Possibly limiting further injunctions against choice of law clauses.

Additional notes on the decision

• Limitation of Protection?
• Potentially divergence in application of art. 5 and 6 Rome I Regulation (lack of reference of question to CJEU).

• No impact yet (Not cited in other cases);
• Could be used in motivations to reduce consumer protection.