Daniela Mühlleitner v Ahmad Yusufi and Wadat Yusufi.
Date: 2012-09-06
26. It should be recalled, first, that Article 15(1)(c) of the Brussels I Regulation constitutes a derogation both from the general rule of jurisdiction laid down in Article 2(1) of the regulation, which confers jurisdiction on the courts of the Member State in which the defendant is domiciled, and from the rule of special jurisdiction for contracts, set out in Article 5(1) of the regulation, which confers jurisdiction on the courts of the place of performance of the obligation on which the claim is based ( Pammer and Hotel Alpenhof , paragraph 53).
27. It follows that such a derogation must necessarily be interpreted strictly, as any derogation from or exception to a general rule is to be inte rpreted strictly.
28. Next, it must be recalled that the concepts used in the Brussels I Regulation – in particular those which appear in Article 15(1)(c) of the regulation – must be interpreted independently, by reference principally to the system and objectives of the regulation, in order to ensure that it is uniformly applied in all the Member States (see, to that effect, Case C-27/02 Engler  [2005] ECR I-481, paragraph 33, and Pammer and Hotel Alpenhof , paragraph 55).
29. The Court has previously held that, in the system established by the Brussels I Regulation, Article 15(1)(c) of the regulation, as is clear from recital 13 in the preamble to the regulation, occupies the same place and fulfils the same function of protecting the consumer as the weaker party as does point 3 of the first paragraph of Article 13 of the Brussels Convention (see Case C-180/06 Ilsinger  [2009] ECR I-3961, paragraph 41).
32. By its question the referring court essentially asks whether Article 15(1)(c) of the Brussels I Regulation must be interpreted as requiring the contract between the consumer and the trader to be concluded at a distance. In that context, the court asks whether it follows from paragraphs 86 and 87 of Pammer and Hotel Alpenhof  that the scope of Article 15(1)(c) of the Brussels I Regulation is limited solely to consumer contracts concluded at a distance.
33. On this point, it is true that, while the aim of Article 15(1)(c) of the Brussels I Regulation is to protect consumers, that does not imply that that protection is absolute (see Pammer and Hotel Alpenhof , paragraph 70). Moreover, the need for the consumer contracts to be concluded at a distance is mentioned in the joint statement and in recital 24 in the preamble to the Rome I Regulation, which cites the joint statement.
38. The Court has also noted that the wording of Article 15(1) of the Brussels I Regulation is not identical in every respect to that of the first paragraph of Article 13 of the Brussels Convention. In particular, it has found that the conditions for application which consumer contracts must fulfil are now worded more generally than they were, in order to ensure better protection for consumers with regard to new means of communication and the development of electronic commerce (see Pammer and Hotel Alpenhof , paragraph 59).
39. The European Union legislature thus replaced the conditions 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, secondly, the consumer to have taken in that State the steps necessary for the conclusion of the contract with conditions applicable to the trader alone ( Pammer and Hotel Alpenhof , paragraph 60).
43. In the third place, with respect to the judgment in Pammer and Hotel Alpenhof , the Court held in paragraphs 86 and 87 of that judgment, in response to the arguments put forward by Hotel Alpenhof to the effect that Article 15(1)(c) of the Brussels I Regulation could not apply because the contract with the consumer had been concluded on the spot and not at a distance, that those arguments were ineffective in that case because, on the facts, the hotel room had been reserved and the reservation confirmed at a distance.
44. As the Advocate General observes in points 36 to 38 of his Opinion in the present case, paragraphs 86 and 87 of that judgment represent only the Court’s reply to the arguments adduced by Hotel Alpenhof, and their significance cannot extend beyond the particular circumstances of that case. It remains the case that the essential condition to which the application of Article 15(1)(c) of the Brussels I Regulation is subject is that relating to a commercial or professional activity directed to the State of the consumer’s domicile. In that respect, both the establishment of contact at a distance, as in the present case, and the reservation of goods or services at a distance, or a fortiori  the conclusion of a consumer contract at a distance, are indications that the contract is connected with such an activity.