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I. CLARIFYING THE ‘PHILOSOPHY OF ARTICLE 15’ IN THE BRUSSELS I REGULATION: C-585/08 PETER PAMMER V REEDERE KARL SCHLUTER GMBH & CO AND C-144/09 HOTEL ALPENHOF GESMBH V OLIVER HELLER

Published online by Cambridge University Press:  12 May 2011

Lorna Gillies
Lorna Gillies
Affiliation:
School of Law, University of Leicester.
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Extract

In the Cases C-585/08 Peter Pammer v Reedere Karl Schluter GmbH & Co and C-144/09 Hotel Alpenhof GesmbH v Oliver Heller, the CJEU considered the applicability of article 15(1) (c) of Regulation EC 44/2001 (Brussels I) vis-à-vis the use of web sites in commercial communications with consumers domiciled in other Member States. Article 15 of Brussels I contains special rules which determine the jurisdiction of disputes concerning ‘protected’1 consumer contracts falling within its scope. Articles 15(1)(a) and (b) apply where either the contract is subject to an instalment credit arrangement or where the contract is for a loan to finance the sale of goods respectively. These two recent cases were concerned with article 15(1)(c), itself previously regarded by the Commission as the ‘philosophy of Article 15.’2 The connecting factors in article 15(1)(c) apply in two situations.3 The first is where the seller concludes contracts as a result of commercial activities entered into in the Member State of the consumer's domicile. The alternative applies when a business ‘directs’ its professional or commercial activities to the Member State of the consumer's domicile and a contract is concluded as a consequence of those activities. Article 15(2) also (currently) provides that a non-EU defendant corporation which has a branch or agency in a Member State that contracts with a consumer may be regarded as domiciled in that Member State. The cases are important as for the first time references were made to the CJEU to specifically consider and interpret the extent to which a business' web site should be construed as ‘directing [commercial] activities’ towards consumers domiciled in other Member States. Essentially, what kind of activity should be construed as directing activity when a seller or his agent uses a web site with the intention to facilitate contractual activities with consumers located in a Member State?

Type
Private International Law
Information
International & Comparative Law Quarterly , Volume 60 , Issue 2 , April 2011 , pp. 557 - 564
Copyright
Copyright © 2011 British Institute of International and Comparative Law

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References

1 Bertrand v Ott [1978] ECR 1431; P Stone, EU Private International Law, (Edward Elgar, Cheltenham, 2006) 122. See generally DJB Svantesson, Private International Law and the Internet (Kluwer Law International, The Hague, 2007); L Gillies, Electronic Commerce and International Private Law, A Study of Electronic Consumer Contracts, (Ashgate, Aldershot, 2008); J Hill, Cross-Border Consumer Contracts (OUP, Oxford, 2008); S Tang, Electronic Consumer Contracts in the Conflict of Laws (Hart, Oxford, 2009); Cachia, P, ‘Consumer contracts in European private international law: the sphere of operation of the consumer contract rules in the Brussels I and Rome I Regulations’ (2009) 34 EL Rev 3 476Google Scholar; F Wang, Internet Jurisdiction and Choice of Law, Legal Practices in the EU, US and China (CUP, Cambridge, 2010).

2 COM (1999) 348 FINAL 99/0154 (CNS), 14/07/99, 16; Gillies (n 1) 88 ff.

3 Øren, J, ‘International Jurisdiction Over Consumer Contracts in e-Europe’ (2003) 52 ICLQ 665CrossRefGoogle Scholar.

4 Judgment of the Court (Grand Chamber) C-585/08 and C-144/09, 7 December 2010, para 14.

5 ibid para 22.

6 ibid para 32.

7 Art 6, Regulation EC 593/2008, Rome I.

8 Standard Bank London Ltd v Dimitrios and Styliani Apostolakis (No 2) [2001] Lloyd's Law Reports 240, 248.

9 Noting the current effect of art 15(2) upon non-EU based corporations. See the recent proposal by the Commission for the replacement of the Brussels I Regulation: COM (2010) 748 FINAL, 2010/0383 (COD), 14 December 2010 which, inter alia, proposes to ‘Europeanise’ Member States' residual jurisdiction for the benefit of EU consumers. At the time of writing, no substantive changes appear to be proposed vis-à-vis art 15.

10 [2003] 1 All ER (Comm) 394 (CA).

11 A Briggs and P Rees (ed), Civil Jurisdiction and Judgments (5th edn, Informa Law, London, 2009) 141.

12 Bertrand v Ott [1978] ECR 1431, Shearson Lehmann Hutton Inc v TVB [1993] ECR I-139 and Standard Bank London Ltd v Dimitrios and Styliani Apostolakis (No 1) [2000] IL Pr 7661431 (cf BJ Mann (Advertising) Ltd v Ace Welding & Fabrications Ltd 1994 SCLR 763 overruled in Prostar Management Ltd v Twaddle 2003 SLT (Sh Ct) 11).

13 C-96/00 R Gabriel v Schlanck & Schick GmbH [2002] ECR I-6367.

14 C-180/06 Renate Ilsinger v Martin Dreschers (administrator in the insolvency of Schlank & Schick GmbH) 2009/C 153/05.

15 ibid.

16 Referring to the original proposal, the EESC opinion, the revision and the Statement on art 15.

17 Derived from Zippo Manufacturing v Zippo Dot Com. Inc, 952 F.Supp, 1119 (W.D. Pa. 1997), subsequently adapted by the Supreme Court in ALS Scan v Digital Service Consultants Inc, 537 US 1105 (2003) and Bates v Starnes 2005 WL 705345 (D.Md.), 24 March 2005.

18 See (n 3).

19 Judgment of the Court (Grand Chamber) C-585/08 and C-144/09, 7 December 2010, para 11.

20 ibid para 64; on targeting see Gillies (n 1) generally and 204 ff.

21 ibid para 92, despite an acknowledgement that the European Parliament's earlier (rejected) proposal that a business would have to have ‘purposefully directed activity...’ analogous to a purposeful availment criteria in determining specific personal jurisdiction in a US state; Gillies (n 1) 158 ff.

22 ibid para 69–70; following the US position derived from Asahi Metal Industry Co v Superior Court 480 US 102, 109, 107, S.Ct. 1026, 1033 94 L.Ed.2d.92 (1987); cf ALS Scan v Digital Service Consultants Inc, 293 F.3d 707 (4th Cir, 2002).

23 ibid para 73.

24 ibid para 76; in accordance with the requirement of art 15(1)(c).

25 ibid para 93. Word added for syntax.

26 ibid.

27 See generally Dutson, S, ‘E-Commerce—European Union Transnational E-Commerce,’ (2000) 16 CSLR 105Google Scholar and Stone, P, ‘Internet Consumer Contracts and European Private International Law’ (2000) 9 Information and Communications Technology Law 1CrossRefGoogle Scholar, 5.