OLG Düsseldorf - I-7 W 66/19

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OLG Düsseldorf - I-7 W 66/19
CourtsDE-NW.png
Court: OLG Düsseldorf (Germany)
Jurisdiction: Germany
Relevant Law: Regulation 1393/2007

German Civil Procedural Code (ZPO)

German Civil Code (BGB)

Decided: 18. 12. 2019
Published: n/a
Parties: facebook.com
National Case Number: I-7 W 66/19
European Case Law Identifier: n/a
Appeal from: LG Düsseldorf (Regional Court)
Language: German
Original Source: NRW Justiz-Online (in DE)

The Higher Regional Court of Düsseldorf issued injunction against Facebook on the basis that in a legal dispute with a German user, Facebook cannot insist on a translation of German documents into English.

English Summary[edit | edit source]

Facts[edit | edit source]

"In September 2018, a man from Düsseldorf had obtained a temporary injunction from the Düsseldorf Regional Court, which prohibited the Irish-based company Facebook from blocking the man from posting a specific text on www.facebook.com or from deleting the post. He had this injunction served on Facebook without an English translation. Facebook claimed that the company did not understand the content and needed an English translation."[1]

Holding[edit | edit source]

"The 7th Civil Senate ruled that the understanding of the language depends on the organization of the company as a whole. Facebook has a large number of users in Germany to whom the platform is made available entirely in German. The contractual documents used for this purpose are also in German. Concrete formulations in the terms of use show a thorough knowledge of the German language and German law. The Senate had to deal with this question because the man from Düsseldorf claimed the costs incurred by him in the amount of approximately EUR 730. This requires service of the preliminary injunction. The Senate had to clarify the validity of this service. The content of the contribution, which was not to be deleted, was irrelevant to the decision."[2]

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English Machine Translation of the Decision[edit | edit source]

The decision below is a machine translation of the original. Please refer to the German original for more details.

DECISION
Reasons
I. The Regional Court has forbidden the respondent, under threat of regulatory measures by way of a temporary injunction, by order of 18.09.2018 to block the applicant from posting a specific text on www.facebook.com or to delete the contribution. In addition, it ordered the respondent to pay the costs of the proceedings, to whom the order of 18.09.2018 was to be served in German by way of legal assistance. 

In a letter dated 25.02.2019, the Dublin-based law firm ... and stated that the defendant refused to accept the documents sent to it in the present proceedings because no English translation of the documents had been provided and the defendant's legal department did not understand the German language. The official with certain judicial powers dismissed the application by the contested order on the grounds that there was no effective title under § 103.1 of the Code of Civil Procedure because the temporary injunction had not been effectively granted.03.2019 and, with reference to case law, states that the respondent is acting in an abusive manner, because its reference to the registered office of the company undermines the consumer jurisdiction under European law. 

The Regional Court did not deal with the indication that the defendant had commissioned a German law firm in all cases in which it had had applications rejected. The ECJ had decided that the national courts could use circumstantial evidence such as that submitted if they wished to assume an abuse of rights. In this respect, the assumption of the Regional Court that a presumption that the lawyers employed by the defendant were not proficient in the German language was not sufficient was incorrect.  The respondent, who was granted the right to be heard on the immediate appeal of the plaintiff against the decision of the Regional Court of 27 March 2019, first of all examined the documents sent to her by the Dublin-based law firm ... not having been translated into a language which the defendant understands. She was then instructed by the Frankfurt law firm... filed an application for the immediate appeal to be dismissed and argued that the immediate appeal was not admissible under either Paragraph 567(1)(1) or (2) of the ZPO. With reference to the case-law of the Regional Court, the respondent states that the interim injunction (and thus the basic decision on costs) of 18 September 2018 was not validly served because it was not translated.

II. the immediate appeal of the applicant, which is admissible under § 104 (3) ZPO and also permissible in other respects, is also successful in the case.contrary to the view held by the Regional Court and the respondent in the written pleading of 6 December 2019, service of the interim order and the other documents sent to the respondent by the Regional Court is effective.  The refusal of acceptance due to a missing English translation was unjustified, so that the service of the documents must be regarded as having been effected in accordance with § 179 sentence 3 of the German Code of Civil Procedure. The Senate does not agree with the decisions of the Land courts cited by the respondent, but with the opposite - higher court - case law on the question at issue here.Pursuant to Article 8.1 of the Brussels Convention, acceptance of a document to be served may be refused if it is not in a language that the addressee understands (lit. a) or the official language of the place of service (lit. b).  

The 2nd alternative is not applicable in this case, as German is not an official language in Ireland.  However, it must be assumed that the respondent understands German and was therefore not entitled to refuse to accept the documents to be served. The question of whether a company as recipient can be assumed to understand the language does not depend on the personal abilities of the members of the management board, but on the organisation of the company as a whole. The decisive factor is whether, due to the nature and scope of business activities in a particular country, it can be assumed that the company has employees who can deal with legal disputes with customers in the local language. In this respect, an overall assessment must be made taking into account all circumstances (see ECJ, decision of 28 April 2016, C-384/14 marginal 77 ff., juris; OLG Cologne, NJW-RR 2019, 1213 m.w.  Nachw.; LG Offenburg, judgment of 26 September 2018 - 2 O 310/18-, juris; LG Stuttgart, judgment of 29 August 2019 - 11 O 291/18 -BeckRS 2019, 21036). This shows here that the defendant's assertion made in the letter of 25 February 2019 that none of the members of its legal department has sufficient language skills to fully understand complaints, court orders or notifications in German or to defend the company in German without the support of an external consultant is purely a protective assertion and that the defendant does have sufficient knowledge of German.  It is known to the court that the defendant has a large number of users in Germany to whom it makes its platform available completely in German. In addition, all documents used in the relationship between the parties, in particular the General Terms and Conditions (Annex K1) and the Community Standards (Annex K3) are in German. Although the current terms of use presented no longer contain - as the 
4Previous version - the explicit choice of German law.  However, the "additional provisions" in section 4 are obviously based on the validity of German law.  The formulated "limitations of liability" correspond in all details to the relevant requirements for the effectiveness of general terms and conditions according to § 309 No. 7 BGB.  They contain an explicit reference to the German Product Liability Act. In subsection 4, the defendant draws the attention of its users to the fact that if they are consumers and have their permanent residence in a member state of the European Union, the laws of that member state apply to any claim, subject matter of the action or dispute against them and the user can have his claim settled before any court in that member state which has jurisdiction over the claim. It would not be possible to formulate these terms and conditions of use without a thorough knowledge of the German language and German law, and consequently the refusal of the defendant to accept the untranslated documents proves to be inadmissible and abusive (also OLG Köln, a.Munich Higher Regional Court, order of 9 May 2019 - 18 W 523/19 -; Dres-den Higher Regional Court, order of 5 April 2019 - 3 W 286/19 -; Stuttgart District Court, loc. cit.; Offenburg District Court, loc. cit.)    Pursuant to § 572.3 of the Code of Civil Procedure (ZPO), the Senate shall transfer the decision on the applicant's application for the fixing of costs of 11 March 2019 to the official receiver at the Regional Court, who shall still grant the respondent a hearing in this matter and shall also decide on the costs of the appeal proceedings.