The provision of § 5 Abs. 1 No.. 2 TMG commands – in Wortlautkongruenz implemented by the type. 5 Abs. 1 lit c Directive 2000/31/EC – specifying the address of electronic mail. This is the e-mail address. A fax number or a contact form does not satisfy.

KG judgment of 7. More 2013 The. 5 You 32/12 – eMail-Angabe im Impressum

…

1. The appeals of both parties against the judgment of the civil court 15 the District Court of Berlin 21. February 2012 – 15 The 666/10 – be rejected.

2 2. The costs of the lawsuit the plaintiff to be the second instance 37 % and the defendant 63 % imposed.

3 3. This and the first instance judgment is provisionally enforceable. The defendant may the enforcement of that judgment to I 1 through security in the amount of 10.000 € and enforcement because of the costs of 110 % away due to the amount of the judgments enforceable, unless the applicant before the enforcement of that judgment to I 1 Security in the amount of 10.000 € and before the due enforcement of the security costs in the amount of 110 % each of the guaranteed amount to be enforced. The applicant must enforcement by security in the amount of 110 % away due to the amount of the judgments enforceable, unless the defendant prior to the enforcement of security in the amount 110 % each of the guaranteed amount to be enforced.

4 4. The revision is not approved.

Rationale
5 A.

6 According to § 540 Abs. 1 Set 1 No.. 1 Code of Civil Procedure is on the factual findings, including the reproduced applications in the judgment (following: “LGU” along with page number of the transfer printing) – corrected version according to country court order from 26. April 2012 (Bd. I Bl. 237-238) – taken with the following additions:

7 The district court – where the appeal judgment still relevant – Beklagte Gemäß Klageantrag I 1 (betr. Angabe the E-Mail Address) and condemned the action request to I 2 (betr. Reference to Irish law) rejected.

8 Against this, both the plaintiff and the defendant in contact with their – each shape- and timely inlaid and justified – Appeals, where the plaintiff's conviction (also) action in accordance with the request I 2 (betr. Reference to Irish law) and the defendant's dismissal (also) I request for action 1 (betr. Angabe the E-Mail Address) seeks.

9 To his repeated appeals and the plaintiff deepened his submissions at first instance to this effect and argues, among other:

10 Looking to § 5a UWG it is for the defendant, be adequate information to consumers “early” noted, that he would face in the event of a conflict under certain circumstances it with a foreign law. For the consumer it must (otherwise) do not expect. The defendant used by the top level domain of the defendant (“.with”) fashion (different “.ie”) no way to back Ireland. The disputed website will (extent disputed) also – by forwarding – achieved by entering the on Germany indicative top-level domain (from “www.r… .of” auf www.r… .com/de, the latter domain in the browser line – common ground – remains). Although the consumer is familiar, that it is for the defendant to a non-company based in Germany. In the foreground stand but rather the fact, that the consumer will be addressed at the Telemedia services selected by him in his native language. The consumer should in accordance with the type. 6 First of all I reckon Rome also in international traffic so, that would be granted to him indispensable at least the mandatory rights of his native right. The special nature of the. 5 Rome I does not preclude the. Rather, it must be assumed, to the consumer by the Rome I Regulation, a kind of “Special protection” 'll granted, what the idea of ​​the “Security” stamping of transactions on the Internet. In order to determine the consumers' understanding rather be made to the basic rule of the type. 6 Rome I turn off. The opinion of the District Court, the particular choice of law clauses befänden to “there, where they are to be expected from the general experience, namely, each at the end of the Terms and Conditions” (LGU 33 Abs. 3), contradicts the fact, that the consumer is tormenting experience, reluctantly through long texts, to read an important message. The important from their point of view messages ask the defendant also at the beginning of their rules, when they are about under no. 2.3. of her “General Conditions of Carriage for passengers and baggage” (Anlagenkonvolut K 3 a.E.) with “conflicting provision of law” dealing.

11 From its (complains hand disputed) Assertion, that the defendant also (purely) German domestic flights offering or. have offered, the plaintiff moved away.

12 The applicant claims,

13 the judgment of the District Court of Berlin 21. February 2012 – 15 The 666/10 – partially amend and continue to condemn the defendant,

14 while avoiding a deadline set for each violation administrative fine it up to 250.000 €, alternatively, imprisonment up to six months, or imprisonment for up to six months, to refrain from,

15 in the context of business actions towards consumers who are residents of the Federal Republic of Germany in the German version of www.r via the Internet address… .com / en accessible information society service air transport services, where the airport of departure or arrival airport in the Federal Republic of Germany,, and offer to the fact, that by the terms of the contract shall be governed by Irish law, solely to indicate such, that

16 · Under point 7 Terms of Use, their knowledge by clicking a checkbox with the design

17 [Illustration]

18 to be confirmed, The following explanation is given:

19 By using the Web site R…, including the use of information in connection with flight data, Prices, etc., be explained by the parties to the exclusive jurisdiction of the courts in the Republic of Ireland and the applicability of local law agree.

20 and

21 · In the General Conditions of Carriage, their inclusion in the accounting system by activating a checkbox with the text:

22 [Illustration]

23 should be, the following provision under Article 18 is maintained:

24 ARTICLE 18 – ANDWENDBARES LAW AND JURISDICTION

25 Your contract of carriage with R…, including R… 'S general travel- and business conditions and general conditions of carriage, is subject to Irish law.

26 The defendant,

27 dismissed the appeal by the plaintiff.

28 Defends the defendant – the extent challenged in the appeal by the plaintiff – the contested decision and repeated and deepened her to this effect submissions at first instance.

29 For their own vocation repeated and the defendant deepened their submissions at first instance and submits, inter alia,.

30 Already her originally under the heading “Contact” specified postal address, Fax numbers, and multiple phone numbers satisfy the requirements of § 5 Abs. 1 No.. 2 TMG, because this information enabled the users of the medium telephoto least comparable way in the situation, quickly with the defendant, to communicate directly and efficiently in touch, as it would also be an indication of the electronic mail address of the event. In the – so far offered – teleological interpretation of said provision is given also, that by the defendant on 70 Million years passengers and 99,8 % Online reservations would lead the additional indication of an e-mail address to a barely processed number of e-mail messages, where also the problem of spam e-mails should kick). Therefore other European airlines would give no or insufficient / inappropriate e-mail addresses on their website at. In addition, the defendant with the (undisputed) Introduction (and additional improvement) the online contact form done with the statutory requirements of an electronic contact receiving comply with its requirements.

31 The defendant,

32 the contested judgment of the District Court of Berlin from February 21 2012, Yeah: 15 The 666/10, partially amend and the action – going on – dismissed insofar, as the defendant in avoiding an administrative fine of up to 250.000 €, alternatively, imprisonment up to six months, the latter to perform at the Directors, is doomed, to refrain, in the context of business-to-consumer activities in the Federal Republic of Germany

33 in the German version of www.r via the Internet address… .com / en accessible information society service offer their air transport services and not an electronic mail address (E-Mail-Adresse), where the consumer can address a resident of the Federal Republic of Germany, specify.

34 The applicant claims,

35 dismissed the defendant's appeal.

36 Defended the plaintiff – the extent challenged in the appeal of the defendant – the contested decision and repeated and deepened his argument to this effect at first instance.

37 Because of the additional arguments of the parties on appeal, reference is made to the presented content of the memoranda and Annexes.

38 B.

39 Both appeal against the district court judgment is permissible and fittings- been and timely filed and justified, therefore allowed, have in the matter but no success.

40 I.

41 With appropriate considerations, the district court adopted its international responsibility (LGU 15-17). The parties to the appeal not pull the (more) refers in doubt and the Senate – the equally affirmative – thereon.

42 II.

43 The appeal of the plaintiff is unfounded. By law, the district court suit the application I 2 (for allegedly not sufficient reference to the [by the defendant sought] Application of Irish law) rejected.

44 1.

45 Rightly – and to the extent not attacked by the Appeals – the district court insofar as the existence of a misleading action iS. of § 5 UWG denied [LGU 27-28]. The appeal attacks the not and the Senate refers approvingly on.

46 2.

47 Approval is also worthy – and insofar attacked by the Appeals vain – is the assessment of the District Court, that no unfairness I.s. of § 5 Abs. 1 and 2 UWG present. Contrary to predictions of the appeal, the defendant in the contested Internet presence neither “discreet”, that the application of Irish law to be agreed, nor the consumer this information “withhold”. The Senate, in its opinion refers to the essentially correct relevant observations of the District Court (LGU 28-34) and supplemented this with a view of the appellate arguments only as follows:

48 a)

49 An expectation of the domestic consumer reference (= Average informed and intelligent, appropriate to the situation attentive consumers, vgl. BGH GRUR 2012, 1053, Rn. 19 – Market leader sports), books a flight on the disputed website, it will come to German law, can not be ascertained. To such an assumption is no sufficient reason. The Senate may these and reproduced below in this context, estimates of the “Reference consumer” Write a firsthand, particularly as the single judge dealt – as reported in the hearing – often (international) flies and often (International) Flights on the Internet at various (in- and foreign) Airlines and book THEREFORE one of the issues raised by the public to readily Advertising.

50 aa)

51 Said reference consumer knows – which admits the appeal – that it is the applicant is a foreign air carrier. It's always about flights involving foreign countries, provides for purely domestic German flights and did not offer to the defendant (of the opposite statement is also the last appointment moved away). For the consumer, it may therefore initially at least not be completely surprising, if a company – already at the unification of law against all, originating from many different countries airline passengers – will try, the various legal systems of the respective home Internet users when booking a flight “completely waive” and instead the agreement of the – obvious – to pursue their own home right.

52 bb)

53 An extent contrary expectations of the domestic reference consumer is not disputed by the accessibility of the website by users entering “www.r… .of” and automatic forwarding to “www.r… .com/de” (Underline here) generated. Neither is true for the fact, that the so far reached website is continuously held in German language. For it is commonly known, that international company offering far as possible their respective second-level domain as far as possible for all national top-level domains (of each targeted market areas) to register their products and the extent “all over” and continue to provide each different languages, to respond in this way many consumers as possible in as many countries. Such an act can be sure (as well as in case of dispute) the conclusion, that the activity of such contractor on the respective State (i.S. about the nature. 15 Abs. 1 BUCHST. c EuGVVO) “aligned” is (vgl. Justice NJW 2011, 505). A concern of the company, thus to be come the national law of each addressed in this way the consumer to application, is a wise consumer of such a procedure does not conclude.

54 cc)

55 Also, the extent applicable private international law does not suggest a meaning deeper understanding of the domestic consumer reference, booking flights in the disputed website it come (absolutely and without further) to apply domestic contract law. By the end of 2009 likely extent to allow current provision of Article. 28 BGB A.F. have led to the application of the law of the home business jet operator, and thus the consumer expectation – if any – have drawn in the exact opposite direction. Since then, with respect to consumer contracts in principle mandatory domestic Heimartrecht to protect consumers no longer by agreement of any other jurisdiction “waived” will (Art. 6 Abs. 1, 2 Rooms In), what extent may influence the consumer perceptions and expectations. Assuming the latter, but does not make sense, why not the same for passenger transport contracts in terms of the extent existing exception (vgl. Art. 6 Abs. 1 [“Without prejudice ...”], Abs. 4 BUCHST. b, Art. 5 Abs. 2 Rooms In) to apply, namely that the fact of a home consumer right away- and the national law of the entrepreneur afferent choice of law without the restrictions of the type. 6 Abs. 1, 2 Rome I is possible.

56 b)

57 Therefore makes the current law choice of law, as the defendant seeks to practice in their disputed website, to, and it is in accordance with currently valid legal situation further so, that this choice of law – which both parties expect, which is also not dispute and which therefore subordinate to the Senate in the event of a dispute as applicable – can be made legally binding also by effectively of consolidated general terms and conditions, then it would be inconsistent from the perspective of the Senate, they wanted to the users of such terms about the “Detour” of § 5a Terms yet again separate notices to work outside the clause (about the “advertising” Part of its online presence) demand from whose relevant content. Like reference consumers are not expected.

58 c)

59 The very fact that the particular choice of law rule are shown in the two disputed condition works the defendant not at the beginning but later in, does not in itself also to a different result. Terms and conditions are naturally tends to consist of regulations, from the dispositive law for the benefit of the user and to the detriment of the contracting party – In case of dispute, the consumer – differ. Something of this kind so more and more beginning and something is always more at the end of a work condition. This is “the small print” immanent. Therefore, in the opinion of the Senate is not to generally, to show his entrepreneur, now once chosen by him for the final clause would have to avoid a violation of § 5a UWG “continues to be affiliated to the front”. Because something has now also form the conclusion of the work condition. The Senate is, moreover, – well, contrary to the appeal – not project it, the reference consumers expect upon review of the Terms and Conditions, that “Sticky” about “earlier” would be as “Unimportant”.

60 III.

61 The defendants' appeal is also unfounded. Rightly, the district court has the unfair competition law injunction regarding the E-mail address not specified admissible and in accordance with § 2 UKlaG, §§ 8, 3, 4 No.. 11 UWG, § 5 Abs. 1 No.. 2 TMG considered justified. The Senate points to the right, in its view relevant observations of the District Court (LGU 18-26) and supplemented this with a view of the appellate arguments only as follows:

62 1.

63 The provision of § 5 Abs. 1 No.. 2 TMG commands – in Wortlautkongruenz implemented by the type. 5 Abs. 1 lit c Directive 2000/31/EC – specifying the address of electronic mail. This is the e-mail address.

64 2.

65 The Court of Justice of the European Union takes “that the service provider is required, ... To stand by his electronic mail address with more information” (Justice NJW 2008, 3553, Rn. 40). M.a.W. exists under current law only once (before other obligations) the obligation to indicate the e-mail address (see also Brönneke in: Roßnagel, Right of Telemedia Services, § 5 TMG Rn. 59; Micklitz/Schirmbacher in: Spindler / Schuster, Law of electronic media, 2. Ed, § 5 TMG Rn. 40).

66 3.

67 In contrast contradicts the view of the defendant, the text of the e-mail address is dispensable when proffer an appropriate surrogate, the written law. You can not be justified by a teleological interpretation. For any interpretation, the teleological, finds its limits in (natural and unique) Wording of the law. Said – rejected here – View exceeds this limit. In addition, the following applies in much detail:

68 4.

69 A fax number is no e-mail address, therefore, no electronic mail address. It is this also not equivalent (vgl. also supra Brönneke. Rn. 59) and causes a “Media break”. Any Internet users can send e-mails. But not every Internet user, certainly not, if he is a consumer, has a fax machine. In addition, the fax delivery is usually more expensive than the e-mail and also time-consuming. The technical ability and knowledge, To send a fax computer, not everyone has internet users, certainly not, if he is a consumer.

70 5.

71 A phone number is no e-mail address, therefore, no electronic mail address. It is this also not equivalent (vgl. also supra Brönneke. Rn. 60) and causes a “Media break”. The spoken word is volatile. It can not be documented, at least not readily. The telephone communication leaves, even if they can be regarded as a direct and efficient communication, no tangible record (Justice NJW 2008, 3553, Rn. 28). Do not write a short (and read) rather than that they are talking about (and listen). Depending on the type of the specified phone number phone call can also (if necessary. even to a considerable extent) be more expensive than the e-mail.

72 6.

73 An online contact form (brought by the defendant in any case only after the time of the complaint specifically at issue here website afterwards into play) is also no e-mail address, therefore, no electronic mail address. It is this also not equivalent (LG also food MMR 2008, 196), at least not completely. The consumer must be in a given it by the entrepreneur form “force” let. It follows from the argument of the defendant to the operational design of your form, for example,, that the consumer desires to be a specific section, which defines the defendant, among other respectively defined by their, “assign” needs and that it is limited when entering text in the character count as well as in the periphery or. the number anhängbarer files. All of this puts users bad, as when he writes an e-mail after free discretion with any number of characters, providing them with any number of attachments and independently evaluate the selected him an e-mail service “brings on the way”. In contrast, it has not the user in the hand, in what way his message in the online form reaches the user. It is after clicking “Send” usually once “missing”‘ and only in the best case is often seen at most a window “Thank you for your message”. And the user is not even once – at least not readily – capable, to document the originating process, together with complete contents of the message itself dispatched immediately, whereas a-Posted email course and automatically saved as a file in their own territory “remains” and will be archived immediately after sending in a sensible location or can be. Whether the other hand, after submitting the online form – as specified by the defendant – then actually having a then automatically returning confirmation email (including reproduction of the originally despatched text) works, remains for the consumer initially uncertain. Who wants to be sure, that it will work with the documentation and this therefore assumes from the outset into their own hands, is compelled in this online form variant, this by drafting and before sending the text – awkward – in a private, previously generated (z.B. Word-) Copy document, and only, to ensure, that your own text after sending somewhere in the “virtual void” is lost forever.

74 All this leaves open the possibility of “free e-mail dispatch” also from that of the “given online form-shipment” appear advantageous. The e-mail address replaced online form in the category referred to by the defendant contradicts not only the letter of the law. It is for many consumers also an unfriendly alternative. It is therefore, unless it is also held in addition to providing your e-mail address (this Court NJW 2008, 3553), reject (de lege lata).

75 7.

76 The appeal says, because the defendant had many customers, threatened many e-mail inputs. All of the listed numbers of processing effort then assume a fundamental rights relevant extent (Art. 12, 14 GG). Not convinced. Who has many customers, embarrassed and transactions in the appropriate amount and can thus invest adequately in the processing of the corresponding customer response. The resulting costs can be – how this should be handled well in most companies in a similar situation – Around the prices. Relevant competitive disadvantages should not arise because, because at least in the Union subject to all competitors the defendant to the extent the same rules. Also a – anyway also made for everyone equally – “Spam risk” the Senate does not measure the extent to how it does the defendant, especially with the use of the – continually updated – Filter software can also meet sustainable. Certain – of course not looking out of hand – “Loads” the defendant (as well as of any other addressees) must – also with regard to the way in. 12, 14 GG reason provided legal barriers – be accepted. For the with § 5 Abs. 1 No.. 2 TMG related intervention is legitimized by the associated rational objective considerations of public interest (detail to Brönneke, a.a.O. Rn. 16 and Rn. 2-8).

77 8.

78 Likewise, in vain shall refer the appeal to other websites of competitors of the defendant with their view comparable gehandhabter provision of contact information as it is reproaching here. Unfair competition shall not be permitted to a, Although many operate it (vgl. a. Senate IIC-RR 2013, 223, 224 – Click and throw back).

79 9.

80 In the above context, a suspension of the proceedings for submission to the Court of Justice of the European Union pursuant to Article. 267 AEUV (also to IIC Federal Constitutional Court 2010, 999, Rn. 45 ff. – Printers and Plotters) does not cause preclude the adoption of Appeals. In view of the above, here is the “right” Application of Union law in this Court's opinion so obvious, to leave no scope for any reasonable doubt to answer the (here by the Appeals) remains the question raised.

81 C.

82 The costs are based on §§ 92 Abs. 1 Code of Civil Procedure. The decisions concerning the provisional enforceability follow from § 708 No.. 10, § 711 Code of Civil Procedure. The revision is not to allow, because the conditions of § 543 Abs. 2 Not available ZPO. The reply to the appeal by the plaintiff was based on the evaluation of a concrete attacked website in the individual case, namely substantially in tatrichterlicher Findings (of Verbraucherverständnisses). Also, when assessing the appeal of the defendants themselves questions have not quite fundamental importance (seriously) on.