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Choice of law by general terms and conditions not surprising per se

Yesterday, the Higher Regional Court of Frankfurt ruled that a choice of law by means of general terms and conditions is not surprising per se, and can thus enable the conclusion of contracts under English law.
Consequently, the OLG ruled, in contrast to the Regional Court, that the defendant did not have to reimburse Easyjet for taxes and fees if the passenger canceled the flight and the airline did not actually incur the expenses. English law provides that.
In the General Terms and Conditions of the Defendant applicable thereto, it states in connection with cancellations, inter alia:
“Taxes and fees collected by an airport operator directly from … (name of airline) are not refundable, even if based on the number of passengers carried.”
According to Art. 6.1 para. 2 of the Terms and Conditions, all refunds are subject to “the applicable laws… of England and Wales…”.
Finally, it is regulated that for the general terms and conditions and all transport… “the law of England and Wales” applies (Art. 29 AGG).
According to the OLG, this choice of law does not constitute an unreasonable disadvantage for consumers and therefore does not lead to an unfair advantage for consumers pursuant to Section 307 (1) of the German Civil Code (HGB). 2 No. 1 BGB does not render the clause inadmissible.

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.


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Marian Härtel

Marian Härtel is a lawyer and entrepreneur specializing in copyright law, competition law and IT/IP law, with a focus on games, esports, media and blockchain.


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