Clarification of jurisdiction rules regarding service offered to consumers via the internet
Under European rules on jurisdiction, proceedings against
consumers have to be brought before the courts of the member state
where the consumer is domiciled. By the same token, consumer can,
when bringing proceedings themselves, always choose to do so in
their own member state.
This procedural consumer protection applies to consumers
concluding contracts of instalment sales, contracts made to finance
a sale and any other contract with a person either pursuing
commercial or professional activities in the member state where the
consumer resides or directing such activities to that state.
The European Court of Justice (‘ECJ’) has now clarified in two
joint cases under which circumstances a trader offering its
services via the internet is considered to have directed its
activities to the member state of a consumer.
In the first case, an Austrian consumer brought proceedings
against a German shipping company before the Austrian courts for
the reimbursement of the sum paid for a voyage. The second case
concerned an Austrian hotel that brought proceedings in Austria
against a German consumer that had failed to pay his bill for a
stay. The main question before the Austrian supreme court as the
court addressing the ECJ was whether the traders (the German
shipping company and the Austrian hotel) had directed their
activities to another member state (Austria and Germany,
respectively) by offering their services through the internet, thus
granting the consumers having booked their services the protection
of the jurisdiction of their own courts.
In its decision, the ECJ held that the mere use of a website by
a trader in order to engage in trade does not in itself mean that
such activity is ‘directed to’ other member states. Instead, the
trader must have manifested its intention to establish commercial
relations with consumers residing in other member states.
Mere mention on a website of an e-mail address or geographical
address or its telephone number without an international dialling
code is not sufficient to establish that a trader is directing its
activity to one or more member states, as that type of information
is necessary to also enable consumers domiciled in the same member
state as the trader to make contact with him.
The intention is, however, clearly manifested when a trader
offers its services or goods in several member states designated by
name or when it pays a search engine operator for an internet
referencing service to facilitate access to its site by consumers
domiciled in various member states. Less patent items of evidence
include the international activity at issue (such as tourist
activities); mention of telephone numbers with the international
code; use of top-level domain names such as .com or .eu rather than
that of the member state of the trader; the description of
itineraries from other member states to the state where the service
is provided; mention of an international clientele from different
member states; and use of a language or currency other than that
used in the trader’s member state.
As far as the two cases are concerned, it is for the national
courts to ascertain whether there is evidence along these lines to
establish that the traders’ activities were directed one or more
member states other than Austria.