ECJ on Cross-Border B2C Contracts: Consumers Can Sue At Home Under Contacts Concluded Abroad

The European Court of Justice has clarified an important issue under the Brussels I Regulation (Council Regulation (EC) No 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters). In a judgment dated September 6, 2012 (C-190/11 – Mühlleitner), the court held that a consumer can sue a business counter party in the consumer’s home courts, even if the consumer travelled into the jurisdiction of the business counter party to conclude the transaction. In the words of the Court, “Article 15(1)(c) of the Brussels I Regulation must be interpreted as not requiring the contract between the consumer and the trader to be concluded at a distance.”

The case before the Court started out as a typical e-commerce transaction: Daniela Mühlleitner from Wels, Austria, searched the German website for a car. When she had identified the car which matched her search criteria, she was directed to an offer from the defendants, Autohaus Yusufi in Hamburg, Germany. Ms. Mühlleitner and Yusufi exchanges phone calls – the court notes that the telephone number stated on the website of Autohaus Yusufi included an international dialling code – and Ms. Mühlleitner was eventually offered a car, the details of which were sent to her by email.

FedEx and UPS apparently don’t deliver cars door to door yet, so Ms. Mühlleitner went to Hamburg herself, signed a sale contract and took the car with her. Only when she had returned home, she discovered certain defects. When the defendants refused to repair the car, Ms. Mühlleitner commenced legal proceedings at the Regional Court (Landesgericht) Wels. Autohaus Yusufi challenged the jurisdiction of the Austrian courts.

The legal issue that the highest Austrian Court (Oberster Gerichtshof) had put before the ECJ for a preliminary ruling was the interpretation of Art. 15 (1) (c) of the Brussels I Regulation. It provides that a consumer can bring an action at home in a contract dispute, if the “contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer’s domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities.”

Both the Regional Court and the Court of Appeal dismissed Ms. Mühlleitner’s action for lack of jurisdiction. They had held that Autohaus Yusufi’s passive website was not enough to qualify as “directing commercial activities” to Austria within the meaning of Article 15. The Oberste Gerichtshof found differently on this issue, and held that the German website and the subsequent conduct did qualify. However, in the light of the ECJ’s Pammer and Alpenhof judgment in 2010 (in particular par. 86), the Austrian judges wanted to now whether only contracts concluded at a distance, and not on the spot, would fall within the scope of Article 15 (1) (c).

The ECJ held that Article 15 (1) (c) does not distinguish between contracts concluded at a distance and those concluded on the spot. Neither the wording of the provision, nor the legislator’s intention to protect consumers or the legislative materials would support such an interpretation: “As as regards a teleological interpretation of Article 15(1)(c) of the Brussels I Regulation, it should be noted that the addition of a condition concerning the conclusion of consumer contracts at a distance would run counter to the objective of that provision in its new, less restrictive formulation, in particular the objective of protecting consumers as the weaker parties to the contract.”

European businesses may therefore be exposed to actions in other member states in consumer contracts were they did previously not anticipate that risk. But is this likely to be of great practical relevance? At first, travelling 900 kilometers from Wels to Hamburg for a second-hand car stroke me as a somewhat unusual fact pattern. But thinking of it, there may be many instances were people want to see what they purchase first, and/or the purchase object is not easily shipped cross border. And in particular in border regions, consumers may pop over from Germany to the Netherlands to buy and pick up a piece of furniture they found on the web, or from France to Belgium for a bicycle customized on the dealer’s web application, not to mention jewelery, works of art, plants or animals. So the application of the Mühlleitner judgment may be greater that it appears at first sight.





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