Wikingerhof GmbH & Co. KG, a company operating a hotel in Germany, concluded a standard from contract with Dutch-domiciled Booking.com BV in March 2009 containing an exclusive jurisdiction clause. The standard form general terms and conditions were subsequently amended on several occasions. Wikingerhof objected to the inclusion of a new term in a new version of Booking.com’s general terms and conditions which was brought to its attention in June 2015. Wikingerhof asserted that certain practices of Booking.com were unfair and contrary to competition law and claimed it had no choice but to agree to the amendment due to Booking.com’s dominant position on the market for intermediary services and accommodation reservation portals. Wikingerhof sought an injunction from the Landgericht Kiel (Kiel Regional Court) to prevent Booking.com making changes to the display of Wikingerhof’s accommodation on the Booking.com website and making the placement of the accommodation subject to a commission in excess of 15% without its consent.
The Regional Court of Kiel (Germany) declined jurisdiction on the basis of the exclusive jurisdiction clause in the contract between Wikingerhof and Booking.com which conferred exclusive jurisdiction on the Courts of Amsterdam to hear disputes arising from the contract. Wikingerhof lodged an appeal before the Bundersgerichtshof (Federal Court of Justice, Germany), which subsequently made a preliminary reference to the CJEU, requested guidance on whether the tort rule in Article 7(2) BRR applied “if it is possible that the conduct complained of is covered by contractual provisions”.
The CJEU repeated the general principle that the Special Jurisdiction rules in the BRR must be interpreted “restrictively” and “independently” by reference to the scheme and purpose of the treaty. This means in practice that the determination of whether a dispute is a “matter relating to tort, delict or quasi-delict” and falls under Article 7(2); or a “matter relating to a contract” and falls under Article 7(1)(a), is not determined by its classification under the applicable national law. The Court held a matter relates to a contract where the interpretation of the contract “appears indispensable to establish the lawful or, on the contrary, unlawful nature of the conduct” (emphasis added). Where the applicant relies “on rules of liability in tort…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” (emphasis added) then the cause of action is a matter relating to a tort and Article 7(2) BRR applies.
The CJEU held that the legal issue at the heart of the case was Wikingerhof’s reliance on the prohibition on abuse of a dominant position in German competition law and any action 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 Article 7(2) BRR. The Court found that it was not “indispensable” to interpret the contract between the parties to determine whether Booking.com’s practices were lawful or unlawful.
The ruling provides helpful clarification both that where there is an abuse of dominance, the existence of a contractual relationship between the parties does not mean that jurisdiction under the BRR will fall to be determined by the contractual rule; and that an abuse of dominance is a tort for the purposes of the BRR, regardless of its classification under national law.
 REGULATION (EU) No 1215/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast)
 C-189/87 Kalfelis EU:C:1988:459, para 19.
 Ibid, pra 16