CONSUMER LAW
On 7 December 2010, the Court of Justice of the European Union (the "ECJ") delivered a judgment in response to two references for a preliminary ruling lodged by the Austrian Supreme Court with regard to the interpretation of Articles 15(1)(c) and 15(3) of Council Regulation 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the so-called "Brussels I Regulation").
As a general rule, the Brussels I Regulation requires actions against a person domiciled in a EU Member State to be brought in the courts of that State. Further, in matters relating to contracts, the Brussels I Regulation allows the courts for the place of performance of the contractual obligation to decide on the dispute.
With a view to protecting consumers, section 4 of the Brussels I Regulation derogates from the above general rules for contractual disputes between a consumer and a trader. In such disputes, the consumer is entitled to bring proceedings before the courts of the EU Member State of his domicile and he may be sued only in that State when certain conditions are satisfied. As follows from Article 15(1)(c) of the Brussels I Regulation, one of these conditions is that the trader pursues his activities in the EU Member State of the consumer's domicile or, by any means, direct his activities to that State. Article 15(3) of the Brussels I Regulation provides that, as far as transport contracts are concerned, this derogation for consumers only applies to contracts which, for an inclusive price, provide for a combination of travel and accommodation.
The first case related to a dispute between Mr Peter Pammer, an Austrian resident, and the German company Reederei Karl Schlüter GmbH & Co. KG ("RKS"). Mr Pammer had booked with RKS on the internet a voyage by freighter from Trieste (Italy) to the Far East. Claiming that the conditions on the vessel did not correspond to the description which he had received, Mr Pammer had refused to embark and sought reimbursement before the Austrian Courts.
The dispute in the second case was between Mr Oliver Heller, a German resident, and the Austrian company Hotel Alpenhof GesmbH ("Hotel Alpenhof"). After having consulted Hotel Alpenhof's website, Mr Heller had reserved a number of rooms by e-mail. Once arrived at the hotel, Mr Heller was unsatisfied with the hotel's services and left without paying his bill. This prompted Hotel Alpenhof to bring an action before the Austrian courts.
As in both cases the jurisdiction of the Austrian courts was challenged, the Austrian Supreme Court asked the ECJ to clarify whether the fact that a company established in a EU Member State offers his services on the internet implies that, in the sense of Articles 15(1)(c) of the Brussels I Regulation, these services are "directed to" other EU Member States as well.
After having confirmed that the voyage by freighter booked by Mr Pammer constituted a package travel within the meaning of Article 15(3) of the Brussels I Regulation, the ECJ emphasises that the mere use of a website by a trader to engage in trade does not suffice for that trader's activity to be "directed to" other EU Member States. In order for Article 15(1)(c) of the Brussels I Regulation to be applicable, the trader must also have manifested his intention to establish commercial relations with consumers from one or more other EU Member States, including that of the consumer's domicile.
The ECJ then examines what evidence can demonstrate that the trader was envisaging doing business with consumers domiciled in another EU Member State. According to the ECJ, such evidence includes "all clear expressions of the intention to solicit the custom of that State's consumers". For instance, this is the case if (i) the trader mentions on his website that he is offering his services or goods in several EU Member States designated by name; or (ii) the trader pays a search engine operator for an internet referencing service so as to facilitate access to his website by consumers domiciled in other EU Member States.
However, the ECJ continues that a finding that an activity is "directed to" other EU Member States does not depend solely on the existence of such patent evidence. Other items of evidence, possibly in combination with one another, include inter alia the following: (i) the international nature of the trader's activity; (ii) mention of telephone numbers with the international code; (iii) use of a top-level domain name which differs from that of the EU Member State in which the trader is established or use of neutral domain names such as ".com" or ".eu"; (iv) the description of itineraries from other EU Member States to the place where the service is provided; (v) mention of an international clientele composed of customers domiciled in various EU Member States, in particular by presentation of accounts written by such customers; and (vi) the possibility on the website to choose a language or use a currency other than that generally used in the trader's home country.
In contrast, mention on a website of the trader's e-mail address or geographical address, or of his telephone number without an international code, does not indicate that the trader is directing his activities to one or more other EU Member States. The reason is that this information is in any event necessary to enable a consumer domiciled in the EU Member State in which the trader is established to make contact with him.
The ECJ concludes that it rests with the Austrian Supreme Court to determine whether, in the cases at hand, it is apparent from the websites of RKS and Hotel Alpenhof as well as from their overall activity that they were envisaging doing business with Austrian casu quo German consumers in the sense that they were minded to conclude contracts with them.
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