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28 January 2015
On December 5 2014 the Frankfurt Regional Court dismissed a claim on grounds of inadmissibility as the plaintiff could not prove a sufficient link to Germany and the defendant's local German office.
The German plaintiff booked flights online with the defendant, a non-European airline with an administrative local office in Frankfurt. The defendant operated an international website and offered a German translation for customers. The German version of the website was operated and maintained by the defendant's local office in Frankfurt.
The plaintiff booked the flights via the German site. The flights departed and landed outside Germany and outside EU territory.
The plaintiff alleged that the German courts were competent to hear the case according to Section 21 of the Code of Civil Procedure, as the defendant had a place of business in Frankfurt. Pursuant to this provision, all actions relating to the operation of the place of business may be brought against that person or company at the court of the location at which the place of business is situated.
The Frankfurt Local Court dismissed the claim on grounds of inadmissibility. The plaintiff appealed to the Frankfurt Regional Court, which confirmed the first-instance decision. The court denied further leave to appeal.
The Frankfurt Regional Court stated that in order to apply Section 21 of the Code of Civil Procedure, two conditions must be met. First, a local branch office must exist (ie, a stable, independent foreign body authorised to do business at its sole discretion). Second, if the action is based on a contract, the contract must be concluded with the local office, or at least with the local office's intervention.
In this case the court denied both conditions and stressed that the tickets had been booked online. According to the court, online booking is an automated, electronic process without the participation of natural persons. No reference to a specific local booking office operated with personnel was given; no reference was made to the Frankfurt office. The defendant's headquarters were outside the European Union and the disputed flights departed and landed outside the European Union. The facts that the plaintiff was a German citizen and the defendant operated an administrative office in Germany were insufficient to establish jurisdiction. According to the court, the responsibility of the defendant's local office for the website was merely a preparatory measure for the subsequent contract, which took place online automatically without the participation of the office.
The court also rejected the plaintiff's argument that the defendant gave the impression that the contract had been concluded with the Frankfurt office, or at least through its intervention. The German value-added-tax identification number listed in the legal information on the website was the defendant's identification number, not the number of the local German office. According to the court, it is generally known that such tax identification numbers are required for any company participating in the trade of goods and services within the European Union. Additionally, the defendant's general terms and conditions expressly stated that the contract was concluded with the defendant, a non-EU entity, and not with the defendant's local office.
Also, the fact that the website and booking tool were available in German did not create the impression that the contract was concluded via the defendant's local German office. The defendant operated its services worldwide and distributed its tickets online in many different languages.
Ultimately, possible pre-trial correspondence with the Frankfurt office in charge of claims processing and editing had no influence on the crucial question of whether the conclusion of the contract involved the local office's participation.
Finally, the plaintiff did not allege that he had concluded the contract of carriage based on the information contained in the legal notice on the website. According to the court, a passenger would not usually study the imprint of an air carrier's website before booking online.
The court clarified two long-disputed questions regarding jurisdiction. First, the German version of an international website does not create the impression that a contract has necessarily been concluded with the local office.
This is particularly interesting as questions remain as to how internet use fits into the existing national system of jurisdiction. One benefit of the Internet is that it allows access to a global audience. Where a company creates a website on a server in a non-European country, it allows access to this website from any part of the world. If a company operates a German-language website and maintains an office in Germany, a customer cannot assume that the contract is necessarily concluded with a German office or through the intervention of that German office.
Second, the court held that pre-trial correspondence with the claims department in a local office in Germany is insufficient to assume jurisdiction of the German courts. The court's opinion is convincing. If a plaintiff could provoke jurisdiction merely by addressing a claim to a local office in Germany, it could establish a forum in hindsight.
For further information on this topic please contact Katja Helen Brecke at Arnecke Siebold Rechtsanwälte by telephone (+49 69 97 98 85 0), fax (+49 69 97 98 85 85) or email (email@example.com). The Arnecke Siebold Rechtsanwälte website can be accessed at www.arneckesiebold.de.
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