On the 24th November 2020 the CJEU has rendered the decision in Case C-59/19 “Wikingerhof”. The case concerns the distinction between special jurisdiction for contract and tort under art. 7 Reg. 1215/2012, when the parties are bound by a contract.

Claimant asked for an injunction against some contract-related practices held by Booking.com, arguing that it has been forced to enter into the contract due to the dominant market position of the defendant, which violated German competition law. The case required the Court to evaluate whether the claim had to be qualified as contractual or not.

The CJEU stated that the cause of the action has to be qualified as a matter relating to tort, delict or quasi-delict within the meaning of point 2 of Article 7 of Regulation No 1215/2012 if:

• the applicant relies […] on rules of liability in tort, delict or quasi-delict, namely breach of an obligation imposed by law, and
• it does not appear indispensable to examine the content of the contract concluded with the defendant in order to assess whether its alleged conduct is lawful or unlawful, since that obligation applies to the defendant independently of that contract”.

In the case at stake, Wikingerhof stated that it had no choice but to enter into the contract and to accept the amendments to Booking.com’s general terms and conditions due to its strong position on the market. Therefore, to determine whether the defendant’s conduct was lawful or not, it was not indispensable to refer to the contract between the parties, as the crucial legal issue was if Booking.com committed an abuse of dominant position. As a consequence, the Court concluded that the action “in so far as it is based on the legal obligation to refrain from any abuse of a dominant position, is a matter relating to tort, delict or quasi-delict within the meaning of point 2 of Article 7 of Regulation No 1215/2012“.

P.B.