ECJ: Definition of a Package / Directing professional activities (International Jurisdiction)
In Cases C-585/08 (Pammer vs Schlueter) and C-144/09 (Hotel Alpenhof vs Heller) [remark: not joint but decided together] ECJ had to decide whether a so called passive website of a Hotel respectively a travel agent meets the requirement of 'directing professional activities' to the (other) EU member state where the consumer has his habitual residence (according to Art 15 Nr 1 lit c Brussels I Regulation). The question is arises with respect to international (exclusive) jurisdiction.
In the Pammer Case first a preliminary question whether a 'Voyage by Freighter' can be seen as a package defined by Art 15 Nr 3 in a different way '(contract of transport other than a contract which, for an inclusive price, provides for a combination of travel and accommodation) has to be answered. Such packages are counter exceptions regarding exclusive jurisdiction with respect to (specific) consumer contracts. Pure contracts of transport are exempted.
General advocate Trstenjak in her opinion as of May 18, 2010 had approved the preliminary question but did not answer the main question in general. From her point of view a website which can be conducted from the consumer's country cannot satisfy the requirement of directing an activity to another member state. She had set up criteria that the referring national court has to take into account besides all circumstances.
European Court of Justice decided this morning that
Taking into account the wording of Art 15 Nr 3, of Art 2 Nr 1 PTD and Art 6 Abs 4 lit b Rome I-Regulation, which refers to the PTD as well as Recitals 7 and 24 Rome I-Regulation the Court is of the opinion that the definition of the counter exception in Art 15 Nr 3 Brussels I-Regulation has to be seen as the one in the PTD. Therefore a voyage by freighter as the on eat hand is in compliance with the requirements of a ‘Package’ and providing transport and accommodation and lasts more than 24 hours. Hence the counter exception is effective and the journey falls within the general scope of ‘Consumer Contracts’ of Brussels I-Regulation [Para 43].
ECJ applies – in a kind of abstract way - a manifestation oft the trader’s (organizer’s) intention to establish commercial relations with consumers in the Member State where the consumer has his domicile [Para 75|].
In this regard the Court is setting points of evidence demonstrating that the trader was envisaging doing business with consumers domiciled in that state.
- Such evidence does not include mention on a website of the trader’s email address or geographical address, or of its telephone number without an international code [Para 77]. Some of that information has become mandatory in the case of services offered on line and can therefore not indicate an intention to direct to a specific state.
- Among the evidence establishing whether an activity is ‘directed to’ the Member State of the consumer’s domicile are all clear expressions of the intention to solicit the custom of that State’s consumers [Para 80].
- Other items of evidence, possibly in combination with one another, may be: [Para 83]
- the international nature of the activity at issue, such as certain tourist activities;
- mention of telephone numbers with the international code [remark: contradictory!];
- use of a top-level domain name other than that of the Member State in which the trader is established, for example ‘.de’, or use of neutral top-level domain names such as ‘.com’ or ‘.eu’;
- the description of itineraries from one or more other Member States to the place where the service is provided;
- mention of an international clientele composed of customers domiciled in various Member States, in particular by presentation of accounts written by such customers.
- The language itself does not do not constitute a relevant factors in case corresponding to the languages generally used in the Member State from which the trader pursues its activity (and to the currency of that Member State). On the other hand, the website permits consumers to use a different language or a different currency, the language and/or currency can be taken into consideration and constitute evidence from which it may be concluded that the trader’s activity is directed to other Member States [Para 84]
4. In the Alpenhof Case the Court is of the opinion that there would appear to be several items of evidence amongst those but t is, however, for the relevant national court [remark: The Austrian Supreme Court ‚OGH’) to ascertain that that is the case [Para 86].
5. In the Pammer Case the fact that the relevant website is the intermediary company’s and not the trader’s site does not preclude the trader from being regarded as directing its activity to the consumer’s domicile state [Para 89].
A similar point of view (and more relevant ideas regarding conflict of laws in this regard) with respect to these 2 procedures can be found in an article published last year in German: Keiler/Binder, RRa 2009, 210