On February 10, 2021 the FCJ annulled a decision by which the Schleswig Court of Appeal (“SCA”) had denied jurisdiction over the injunction claims of Hotel Wikingerhof’s (“Wikingerhof”) against the Dutch hotel booking platform operator Booking.com and remanded the case back to the SCA.[1]

Wikingerhof sought an injunction against certain practices relating to the contract between the parties, which Wikingerhof argued they had been forced to agree to due to the dominant market position of Booking.com in the brokerage of hotel services, which violated German competition law. After the Kiel Regional Court decided that, according to the rules of the Brussels Ibis Regulation on jurisdiction in civil and commercial matters, only Dutch courts had jurisdiction over the case, Wikingerhof appealed this decision.

The FCJ referred the case to the CJEU for a preliminary ruling, seeking guidance on the age- old question of where to draw the line between special jurisdiction for contract and tort if the two parties are bound by a contract but the claim is not strictly-speaking based on it. The CJEU found that the claim had to be qualified as non-contractual as it concerned the breach of an obligation imposed by law. It does not appear requisite to examine the content of the contract concluded with the defendant to assess whether the conduct of which the latter is accused is lawful or unlawful, the CJEU found, since that obligation applies to the defendant independently of that contract.[2]

Consequently, the FCJ decided that, in the present case, the Brussels Ibis Regulation’s rules on jurisdiction in matters relating to tort, delict or quasi-delict can also be opened if it can be considered that the allegedly abusive conduct complies with the provisions of a contract existing between the parties. Based on these rules, a person domiciled in a Member State may be sued in another Member State in the courts for the place where the harmful event occurred or may occur.

The FCJ further held that a jurisdiction clause contained in the terms and conditions of Booking.com, according to which the court at its registered office has jurisdiction over disputes arising from the contractual agreement, would only cover claims for abuse of a dominant position if there were clear indications that the contracting parties intended to extend the material scope of the choice of forum agreement to such non- contractual claims. In the FCJ’s view, this was not the case here.

It remains to be seen whether the decision will encourage “forum shopping” in the form that claimants in the future will increasingly sue for claims that are actually contractual in a tort forum by alleging that the defendant also violated a statute and thus committed a tort.

[1] Wikingerhof/Booking.com (KZR 66/17), FCJ judgment of February 10, 20201, only available in German here.

[2] Wikingerhof (Case C-59/19), CJEU decision of November 24, 2020, available in English here.