Opinion of the Advocate General — ECLI:EU:C:2013:494
Date: 2013-07-18
Language of the case: German
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Germany

summary, I therefore take the view that Article 15(1)(c) of Regulation No 44/2001 should not be interpreted as requiring a causal link between the commercial or professional activity directed to the State of the consumer’s domicile and the decision of the consumer to enter into the contract. 40. However, the causal link constitutes strong evidence when assessing whether the commercial activity is directed to a particular Member State. To justify a finding that the commercial activity is directed to another Member State where the absence of strong evidence, such as a causal link, has been proven, this absence must generally be offset by the existence of at least one item of evidence of comparable strength. 41. Similarly, when interpreting Article 15(1)(c) of Regulation No 44/2001, I am of the opinion that it is relevant that a commercial or professional activity takes place in a specific geographical area in which the territories of two Member States merge to make one conurbation. This geographical context can act as strong evidence of an activity directed to a particular Member State. VI – Conclusion 42. In the light of the arguments set out, I propose that the Court reply in the following terms to the question referred for a preliminary ruling by the Landgericht Saarbrücken: (1) Article 15(1)(c) of Regulation (EC) No 44/2001 should not be interpreted as requiring, as an implicit condition over and above those specifically set out in the provision, a causal link between the commercial or professional activity directed to the Member State of the consumer’s domicile and the decision of the consumer to enter into the contract. However, the causal link constitutes strong evidence when assessing whether the commercial activity is directed to a particular Member State. (2) To justify a finding that the commercial activity is directed to another Member State where the absence of strong evidence, such as a causal link, has been proven, this absence must generally be offset by the existence of at least one item of evidence of comparable strength. A specific geographical area in which the territories of two Member States merge to create one conurbation constitutes, when properly assessed by the national court, strong evidence of an activity directed to a particular Member State for the aforementioned purposes. 1 – Original language: Spanish. 2 – Joined Cases C‑585/08 and C‑144/09 Pammer and Hotel Alpenhof [2010] ECR I‑12527. 3 – Case C‑190/11 Mühlleitner [2012] ECR. 4 – Council Regulation (EC) of 22 December 2000 (OJ 2001 L 12, p. 1). 5 – Mühlleitner, paragraph 44. 6 – Ibid., paragraph 45. 7 – Pammer and Hotel Alpenhof, paragraph 55, and Mühlleitner, paragraph 28. 8 – Pammer and Hotel Alpenhof, paragraph 60, and Mühlleitner, paragraph 39. 9 – Pammer and Hotel Alpenhof, paragraph 56, and Mühlleitner, paragraph 38. 10 – Pammer and Hotel Alpenhof, paragraph 80. 11 – Pammer and Hotel Alpenhof, paragraphs 81 to 93. 12 – Ibid. 13 – Pammer and Hotel Alpenhof, paragraphs 75 and 76, and Mühlleitner, paragraph 44. 14 – See, inter alia, Case C‑144/10 BVG [2011] ECR I‑3961, paragraph 33, and Joined Cases C‑509/09 and C‑161/10 eDate and Martinez and Martinez [2011] ECR I‑3961, paragraph 50. 15 – In this regard, see Magnus, U., and Mankowski, P., European Commentaries on Private International Law, Brussels I Regulation, second edition, Sellier, Munich, 2012, p. 546 et seq.; De Clavière, B., ‘Confirmation de la protection du consommateur actif par les règles de compétence spéciales issues du règlement 44/2001’, Revue Lamy droit des affaires, No 77, 2012, p. 48 et seq.; De Miguel Asensio, P., Derecho Privado de Internet, fourth edition., 2011, p. 963 et seq.; Tassone, S., ‘Il regolamento Bruxelles I e l’interpretazione del suo ambito di applicazione: un altro passo della Corte di giustizia sul cammino della tutela dei diritti del consumatore’, Giurisprudenza di merito, 2013, p. 104 et seq.; and Brkan, M., ‘Arrêt Mühlleitner: vers une protection renforcée des consommateurs dans l’U.E.’, Revue européenne de droit de la consommation, 2013, p. 113 et seq. 16 – Virgós Soriano, M. and Garcimartín, F., take the same view in Derecho Procesal Civil Internacional. Litigación internacional, second edition, Civitas, 2007, p. 171. Opining on Article 13 of the Brussels Convention, Advocate General Darmon also reached the same conclusion, albeit in a context in which the means of communication was not the Internet but a traditional advertising method. See the Advocate General’s Opinion in Case C‑89/91 Shearson Lehman Hutton [1993] ECR I‑139, points 82 to 85. 17 – On the evidential issues relating to the additional and unwritten causal link condition, see Leible, S. and Müller, M., ‘Keine internationale Zuständigkeit deutscher Gerichte bei Maklertätigkeit eines griechischen Rechtsanwalts’, EuZW 2009, p. 29. 18 – Opinion in Mühlleitner, point 38. 19 – It should be pointed out that the French version of the declaration refers to this fact in terms of a necessary condition (‘encore faut-il que ce site Internet invite à la conclusión de contrats à distance et qu’un contrat ait effectivement été conclu à distance’, emphasis added), whereas the English version treats it only as an element to be considered (‘although a factor will be that this Internet site solicits the conclusion of distance contracts and that a contract has actually been concluded at a distance’, emphasis added). The Belgian Government has argued strongly that the Court of Justice should follow the French version and has inferred various consequences from it, regarding both the condition relating to a causal link and that relating to a distance contract. Nevertheless, as I have already explained in my Opinion in Mühlleitner, I take the view that the joint declaration, at least in this particular respect, should not be taken as conclusive, despite the fact that Regulation (EC) No 593/2008 on the law applicable to contractual obligations specifically refers to it. It seems that the Court reached the same conclusion in Mühlleitner, as it did not have regard to this aspect of the joint declaration in its interpretation of Article 15(1)(c) of Regulation No 44/2001. 20 – Zoido, F., et al., Diccionario de Urbanismo. Geografía Urbana y Ordenación del Territorio, Cátedra, 2013, pp. 37 and 106.