Ιn its Judgment in Case C-59/19 Wikingerhof GmbH & Co. KG v Booking.com the Court of Justice ruled that a hotel using the platform Booking.com may, in principle, bring proceedings against Booking.com before a court of the Member State in which that hotel is established in order to bring to an end a possible abuse of a dominant position
Even though the practices which are thus the subject of complaint are implemented within the context of a contractual relationship, the rule of special jurisdiction in matters relating to tort, delict or quasi-delict laid down in the Brussels Ia Regulation is applicable to them.
The Court was asked by the national court whether point 2 of Article 7 of Regulation No 1215/2012 applies to an action seeking an injunction to stop certain practices implemented in the context of the contractual relationship between the applicant and the defendant, based on an allegation of abuse of a dominant position by the latter in breach of competition law
In answer to that question, the Court noted that the applicability of either point 1(a) of Article 7 of Regulation No 1215/2012 or point 2 of Article 7 thereof depends, inter alia, on the examination, by the court hearing the action, of the specific conditions laid down by those provisions.
Thus, where an applicant relies on one of those rules, it is necessary for the court hearing the action to establish whether the applicant’s claims concern, irrespective of their classification under national law, matters relating to a contract or, on the contrary, matters relating to tort, delict or quasi-delict within the meaning of that regulation.
In particular, in order to decide whether a claim between contracting parties is connected to ‘matters relating to a contract’ or to ‘matters relating to tort or delict’, within the meaning of Regulation No 1215/2012, the court hearing the action must examine the obligation ‘relating to a contract’ or ‘relating to tort, delict or quasi-delict’ which constitutes the cause of action.
Thus, an action concerns matters relating to a contract, within the meaning of point 1(a) of Article 7 of Regulation No 1215/2012, if the interpretation of the contract between the defendant and the applicant appears indispensable to establish the lawful or, on the contrary, unlawful nature of the conduct complained of against the former by the latter.
By contrast, where the applicant relies, in its application, on rules of liability in tort, delict or quasi-delict, namely breach of an obligation imposed by law, and where it does not appear indispensable to examine the content of the contract concluded with the defendant in order to assess whether the conduct of which the latter is accused is lawful or unlawful, the cause of the action is a matter relating to tort, delict or quasi-delict within the meaning of point 2 of Article 7 of Regulation No 1215/2012.
In the present case, the Hotel relies, in its application, on an infringement of German competition law, which lays down a general prohibition of abuse of a dominant position, independently of any contract or other voluntary commitment.
Thus, the legal issue at the heart of the case in the main proceedings is whether Booking.com committed an abuse of a dominant position within the meaning of German competition law.
In order to determine whether the practices complained of against Booking.com are lawful or unlawful in the light of that law, it is not indispensable to interpret the contract between the parties to the main proceedings, such interpretation being necessary, at most, in order to establish that those practices actually occur.
The Court concluded that, subject to verification by the referring court, the action brought by the Hotel company, 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. Full text of decision is available here
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