In principle, the defendant, as an air carrier, could provide for a choice of law in its general terms and conditions on a form-by-form basis in accordance with the rules of private international law. In this case, the choice of law clause satisfies the required “minimum of determinability and transparency” within the meaning of Art. 5 Rome I Regulation. It leaves no doubt “about its message and its content.” In addition, the defendant had chosen the law of England, where its registered office is located, as a legal system which does not take into account the limited options under Art. 5 Para. 2 Rome I Regulation. The clause was also not surprising on the German-language side, as “the cross-border aspect is obvious” especially in the case of air transportation contracts.

Contrary to the opinion of the Regional Court, the clause was also not objectionable with regard to the case law of the ECJ on the requirements for a choice of law in the context of consumer contracts. In contrast to consumer contracts within the meaning of Art. 6 Rome I Regulation, no separate reference to the effects of the choice of law is required for transport contracts pursuant to Art. 5 Rome I Regulation.