Peter Pammer v Reederei Karl Schlüter GmbH & Co. KG (C-585/08) and Hotel Alpenhof GesmbH v Oliver Heller (C-144/09).
Date: 2010-12-07
37. As the Court has already held, for a service to qualify as a package within the meaning of Article 2(1) of Directive 90/314, it is enough if, first, it combines tourist services sold at an inclusive price including two of the three services referred to in that provision, namely transport, accommodation and other tourist services not ancillary to transport or accommodation and accounting for a significant proportion of the package, and second, it covers a period of more than 24 hours or includes overnight accommodation (see Case C-400/00 Club-Tour  [2002] ECR I‑4051, paragraph 13).
53. Article 15(1)(c) of Regulation No 44/2001 constitutes a derogation both from the general rule of jurisdiction laid down in Article 2(1) of the regulation, which confers jurisdiction upon 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, under which jurisdiction lies with the courts for the place of performance of the obligation in question (see, to this effect, Case C-464/01 Gruber  [2005] ECR I‑439, paragraph 34).
55. Regulation No 44/2001 does not define the concept in Article 15(1)(c) of activity ‘directed to’ the Member State of the consumer’s domicile. This concept, like those in Article 13 of the Brussels Convention, which Article 15 of the regulation replaces, must be interpreted independently, by reference principally to the system and objectives of the regulation, in order to ensure that it is fully effective (see Case C-96/00 Gabriel  [2002] ECR I-6367, paragraph 37).
57. The Court has already held that, in the system established by Regulation No 44/2001, Article 15(1)(c) occupies, as it is clear from recital 13 in the preamble to the regulation, the same place and fulfils the same function of protecting the weaker party as does point 3 of the first paragraph of Article 13 of the Brussels Convention (Case C-180/06 Ilsinger  [2009] ECR I‑3961, paragraph 41).
58. As regards the latter provision, the Court has indeed repeatedly held that the special rules introduced by the provisions of the Brussels Convention on jurisdiction over consumer contracts serve to ensure adequate protection for the consumer, as the party deemed to be economically weaker and less experienced in legal matters than the other, commercial, party to the contract (see, inter alia, Gruber , paragraph 34, and Case C-27/02 Engler  [2005] ECR I‑481, paragraph 39).
59. However, the Court has also stated – in Ilsinger , paragraph 48 – that the wording of Article 15(1) of Regulation No 44/2001 is not identical in every respect to that of the first paragraph of Article 13 of the Brussels Convention. In particular, it held in paragraph 50 of that judgment 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.
60. The European Union legislature has thus removed 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, second, the consumer to have taken in that State the steps necessary for the conclusion of the contract, replacing them with conditions applicable to the trader alone. The trader must pursue its commercial activities in the Member State of the consumer’s domicile or, by any means, direct such activities to that Member State or to several States including that Member State, and the contract must fall within the scope of such activities.
65. That intention is implicit in certain methods of advertising.
66. The Court has held that ‘advertising’ and ‘specific invitation addressed’ within the meaning of Article 13 of the Brussels Convention cover all forms of advertising carried out in the Contracting State in which the consumer is domiciled, whether disseminated generally by the press, radio, television, cinema or any other medium, or addressed directly, for example by means of catalogues sent specifically to that State, as well as commercial offers made to the consumer in person, in particular by an agent or door-to-door salesman ( Gabriel , paragraph 44).
68. That intention is not, on the other hand, always present in the case of advertising by means of the internet. Since this method of communication inherently has a worldwide reach, advertising on a website by a trader is in principle accessible in all States, and, therefore, throughout the European Union, without any need to incur additional expenditure and irrespective of the intention or otherwise of the trader to target consumers outside the territory of the State in which it is established.
69. It does not follow, however, that the words ‘directs such activities to’ must be interpreted as relating to a website’s merely being accessible in Member States other than that in which the trader concerned is established.
70. Whilst there is no doubt that the aim of Articles 15(1)(c) and 16 of Regulation No 44/2001 is to protect consumers, that does not imply that that protection is absolute (see, by analogy, with regard to Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises (OJ 1985 L 372, p. 31), Case C-215/08 E. Friz  [2010] ECR I-0000, paragraph 44).
78. Furthermore, some of that information has become mandatory in the case of services offered on line. As the Court has already held, by virtue of Article 5(1)(c) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1), a service provider is required to supply to recipients of the service before the conclusion of a contract with them, in addition to its email address, other information which allows the service provider to be contacted rapidly and communicated with in a direct and effective manner (Case C-298/07 Bundesverband der Verbraucherzentralen und Verbraucherverbände  [2008] ECR I‑7841, paragraph 40). That obligation applies whichever the Member State to which the trader directs its activity and even if its activity is directed solely to the Member State in which it is established.
84. So far as concerns the language or the currency used, the joint declaration of the Council and the Commission mentioned in paragraph 11 of the present judgment and reproduced in recital 24 in the preamble to Regulation No 593/2008 states that they do not constitute relevant factors for the purpose of determining whether an activity is directed to one or more other Member States. That is indeed true where they correspond to the languages generally used in the Member State from which the trader pursues its activity and to the currency of that Member State. If, 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.
86. Hotel Alpenhof contends, however, that the contract with the consumer is concluded on the spot and not at a distance, as the room keys are handed over and payment is made on the spot, and that accordingly Article 15(1)(c) of Regulation No 44/2001 cannot apply.
87. In that regard, 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.
89. The fact that the 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 other Member States, including that of the consumer’s domicile, since that company was acting for and on behalf of the trader. It is for the relevant national court to ascertain whether the trader was or should have been aware of the international dimension of the intermediary company’s activity and how the intermediary company and the trader were linked.