Internet Sales, Jurisdiction and Consumer Protection: Joined Cases C-585/08 and C-144/09

The Court of Justice has handed down an interesting, well written and important judgment on the competent jurisdiction to deal with disputes concerning services offered on the internet in Joined Cases C-585/08 and C-144/09 Pammer and Hotel Alpenhof. The Court held that if a trader simply publishes a website to engage in trade that does not of itself mean that its activity is directed to other member States. Consequently, the special rules on jurisdiction in Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters which aim to protect consumers are not necessarily triggered.

The stories of the two cases go like this.

The plaintiff in Case C-585/08 Peter Pammer, is domiciled in Austria and is a traveler of the old school who wished to travel by freighter from Trieste (Italy) to the Far East. He booked a voyage with the German company Reederei Karl Schlüter, through a German travel agency specialising in the sale on the internet of voyages by freighter. When Mr Pammer went to Trieste and saw the vessel he refused to embark on it because it did not, in his view, correspond to the description which he had received from the agency. He claimed a refund of the price he had paid for the voyage. But Reederei Karl Schlüter reimbursed only a part of what Mr Pammer had paid. So, Mr Pammer brought proceedings in the Austrian courts, before which that German company raised a plea that they lacked jurisdiction on the ground that it did not pursue any professional or commercial activity in Austria.

As for Case C-144/09 – a topical case now that the ski season is upon us – the defendant, Oliver Heller, domiciled in Germany, reserved a number of rooms, for a period of a week, in Hotel Alpenhof, in Austria. Mr Heller had consulted the hotel’s website and made his reservation by email, using the address indicated on the site for that purpose. Mr Heller didn’t like the hotel and left without paying his bill. The hotel then brought an action before an Austrian court for payment of the price of his stay. Mr Heller raised a plea of lack of jurisdiction, submitting that, as a consumer domiciled in Germany, he could be sued only in the German courts.

The two cases reached the Oberster Gerichtshof (Supreme Court, Austria), which then asked the Court of Justice whether the fact that a company established in a member State offers its services on the internet means that they ‘are directed’ to other member States too. If that were so, consumers domiciled in those other States who have recourse to the services could benefit, in the event of a dispute with the trader, from the more favorable rules of jurisdiction laid down by Regulation 44/2001 and in particular its Article 15 (1) c).

The Court held that the mere accessibility of the trader’s or the intermediary’s website in the member State in which the consumer is domiciled is insufficient to consider that the trader is directing its activity to the State of the consumer’s domicile within the meaning of Article 15 (1) c). The same goes for a mention of an email address and of other contact details, or of use of a language or a currency which are the language and/or currency generally used in the member State in which the trader is established.

The problem arose because Article 15 (1) c) of Regulation 44/2001 sets out protective rules of a consumer in the event of a dispute with another party to a contract. A consumer plaintiff may bring proceedings against another party to a contract either in the courts of the member State in which that party is domiciled or in the courts where the consumer is domiciled and proceedings may be brought against a consumer defendant only in the courts of the member State in which the consumer is domiciled if “the contract has been concluded with a person who […] by any means, directs [his] activities to that Member State […].”

Painfully, Article 15 (1) c) does not give any clue what “directing” its activity to the member State of the consumer’s domicile could actually mean. The provisions on consumer contracts were reworded in more general terms when the Brussels Convention was transformed into a regulation in order to ensure better protection for consumers with regard to new means of communication and the development of electronic commerce. The EU legislature has removed the conditions, formerly in Article 13 of the Convention, requiring, first, the trader to have addressed a specific invitation to the consumer or to have advertised in the State of the consumer’s domicile and, second, the consumer to have taken in that State the steps necessary for the conclusion of the contract, replacing them with conditions applicable to the trader alone.

The Court held that the wording of Article 15(1)(c) must be considered to encompass and replace the previous concepts of a ‘specific invitation addressed’ to the consumer and ‘advertising’, covering, as the words ‘by any means’ indicate, a wider range of activities. That change - made because of the development of internet communication - both strengthens consumer protection and makes it more difficult to determine the place where the steps necessary for the conclusion of the contract are taken.

It also held that, unlike classic advertising which can be a direct invitation to consumers in other member States, internet communication has an inherently worldwide reach and is thus accessible in all States throughout the EU. It does not follow that the words ‘directs such activities to’ must be interpreted as relating to a website’s merely being accessible in Member States other than that in which the trader concerned is established. The Court noted that the EU legislature did not go as far as to provide that mere use of a website, whatever the territory targeted, amounts to an activity ‘directed to’ other member States which triggers application of the protective rule of jurisdiction referred to in Article 15(1)(c) of Regulation No 44/2001.

The Court stated it was clear from the proposal for a regulation that the EU legislature rejected a suggestion by the Commission seeking the insertion, in the preamble of Regulation No 44/2001, of a recital according to which the marketing of goods or services by electronic means accessible in a Member State constitutes an activity ‘directed to’ that State. That interpretation is also borne out by the joint declaration of the Council and the Commission at the time of the adoption of Regulation No 44/2001, reproduced in recital 24 in the preamble to Regulation No 593/2008, according to which the mere fact that a website is accessible is not sufficient for Article 15(1)(c) of Regulation No 44/2001 to be applicable.

If the use of a website on its own is not directing activities towards a consumer in another State, what is ?

The Court gives guidance on that issue too. It held that the following matters, the list of which is not exhaustive, are capable of constituting evidence from which it may be concluded that the trader’s activity is directed to the member State of the consumer’s domicile, namely the international nature of the activity, mention of itineraries from other member States for going to the place where the trader is established, use of a language or a currency other than the language or currency generally used in the member State in which the trader is established with the possibility of making and confirming the reservation in that other language, mention of telephone numbers with an international code, outlay of expenditure on an internet referencing service in order to facilitate access to the trader’s site or that of its intermediary by consumers domiciled in other member States, use of a top-level domain name other than that of the member State in which the trader is established, and mention of an international clientele composed of customers domiciled in various member States. It is for the national courts to ascertain whether such evidence exists.

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