Austria: reference for ECJ preliminary ruling with regard to Brussels I-Regulation
In the judgement of Dec. 7, 2010 in joint cases C‑585/08 - Pammer and C-144/09 Alpenhof, the ECJ has given guidance to national courts with regard to the circumstances under which a trader whose activity is presented on its website or on that of an intermediary can be considered to be ‘directing’ its activity to the Member State of the consumer’s domicile, within the meaning of Article 15(1)(c) of Regulation No 44/2001 ("Brussels I-Regulation").
However, new issues seem to arise from this decision: in recital 87 of said judgement the ECJ had held that "... the fact that the keys are handed over to the consumer and that payment is made by him in the Member State in which the trader is established does not prevent that provision from applying if the reservation was made and confirmed at a distance, so that the consumer became contractually bound at a distance."
From that reasoning it seems that the application of Article 15(1)(c) requires a distance selling contract - which means that if the contract is concluded on the spot and not at a distance this provision does not provide a forum at the consumer’s domicile.
In a case dealing with the purchase of a car, the Austrian Civil Supreme Court (OGH) had doubts about the correct interpretation of Article 15(1)(c) of the Brussels I-Regulation in this regard and therefore referred the follwong question to the ECJ:
- Does the application of Article 15(1)(c) of Regulation No 44/2001 require a contract between a consumer and a trader which has been conculded at a distance?
(OGH 23.03.2011, 4 Ob 32/11a)