1.

By the present reference for a preliminary ruling, the Oberster Gerichstshof (Austrian Supreme Court) asks the Court whether a consumer contract which is preceded by preparatory steps on the internet must have been concluded at a distance in the event that the consumer wishes to take advantage of the special jurisdiction provided for in Articles 15 and 16 of Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. ( 2 )

2.

In those terms, a straightforward answer to the question may be found in the wording of Article 15(1)(c) of that regulation, if it is read with sufficient attention in conjunction with its legislative history. However, a paragraph of the judgment delivered recently by the Grand Chamber of the Court in Pammer and Hotel Alpenhof ( 3 ) could be interpreted as laying down the condition that the consumer contract must have been concluded at a distance. In any event, that is the uncertainty which the referring court has submitted to the Court.

3.

The issue to be determined in this case and this Opinion is, therefore, the scope of that passage from the judgment in Pammer and Hotel Alpenhof, which – I shall state now – must, in my view, be confined to the specific features of those cases without it being necessary to infer from it an additional, general condition which restricts the special jurisdiction over matters relating to consumers.

4.

In Section 4 (‘Jurisdiction over consumer contracts’) of Chapter II (‘Jurisdiction’) of Regulation No 44/2001, Articles 15 and 16 provide:

‘Article 15

1.   In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this Section, without prejudice to Article 4 and point 5 of Article 5, if:

…

…

Article 16

1.   A consumer may bring proceedings against the other party to a contract either in the courts of the Member State in which that party is domiciled or in the courts for the place where the consumer is domiciled.

2.   Proceedings may be brought against a consumer by the other party to the contract only in the courts of the Member State in which the consumer is domiciled.

...’

5.

Daniela Mühlleitner, the applicant in the main proceedings who resides in Schwanenstadt, Austria, carried out an internet search with a view to purchasing a second-hand vehicle for her private use. On the website www.mobile.de, Ms Mühlleitner entered the specifications of the vehicle she wanted until she found a link with an offer which aroused her interest. After clicking on the link, she accessed the website of Ahmad Yusufi and Wadat Yusufi, the defendants in the main proceedings who reside in Hamburg, Germany.

6.

The defendants’ website included a telephone number preceded by the international dialling code for Germany. Ms Mühlleitner called that number and was assisted by staff from the defendants’ undertaking. She was told that the vehicle offered was no longer for sale but was advised of other similar offers. Ms Mühlleitner agreed that further information about another vehicle, including a number of photographs, could be sent to her by email. According to the case file, during the telephone conversation with the defendants, Ms Mühlleitner stated that she was resident in Austria and asked whether that would pose a problem with regard to the purchase of the vehicle. The defendants stated that there was no difficulty in that connection.

7.

A while later, Ms Mühlleitner travelled to Germany and concluded the purchase contract with the defendants. She took possession of the vehicle and returned to her home in Austria where, after identifying a number of defects and after fruitlessly contacting the defendants several times, she brought a claim in the Austrian courts for repayment of the purchase price and for damages.

8.

The court at first instance ruled that the action was inadmissible on the grounds of lack of international jurisdiction because it took the view that the mere accessibility of the defendants’ website from Austria did not justify the application of the special jurisdiction in Articles 15 and 16 of Regulation No 44/2001. The appellate court confirmed that decision on appeal and again ruled that the Austrian courts lacked jurisdiction. An appeal on a point of law was brought against the latter decision before the Oberster Gerichtshof, which now seeks a preliminary ruling from the Court of Justice.

9.

On 22 April 2011, the reference for a preliminary ruling from the Oberster Gerichtshof was received at the Registry of the Court; the question referred is worded as follows:

‘Does the application of Article 15(1)(c) of Regulation (EC) No 44/2001 (the Brussels I Regulation) presuppose that the contract between the consumer and the undertaking has been concluded at a distance?’

10.

Written observations were lodged by the applicant and the defendants in the main proceedings, the Portuguese Republic, the Czech Republic, the Italian Republic, the Republic of Poland, the Swiss Confederation and the Commission.

11.

The reply to the question referred by the national court is clear from Regulation No 44/2001 and from the case-law of the Court of Justice. As I pointed out in the introduction to this Opinion, the only matter which casts doubt on the reply is a paragraph from the judgment in Pammer and Hotel Alpenhof – specifically paragraph 87 – according to which the application of Article 15(1)(c) of the regulation is conditional on the consumer contract having been concluded at a distance. ( 4 ) Therefore, the Court is not required to rule on the connecting factor laid down in that article, which concerns the place to which the activity must be directed. The present case is confined to a preliminary issue: whether, in order to invoke special jurisdiction over a consumer contract, the contract concerned must have been concluded at a distance.

12.

I shall demonstrate below that that condition is not necessary, either in the light of a reading of the applicable legislation or in the light of the Pammer and Hotel Alpenhof judgment. Were the provision to require a consumer contract to have been concluded at a distance, the scope of the jurisdiction would be restricted to a limited number of situations, which does not appear to be one of the objectives of the regulation. In addition, all the States which have participated in these proceedings, and the Commission, maintain that Article 15(1)(c) is not confined to consumer contracts which have been concluded at a distance and submit that the article must not be interpreted to the detriment of consumers.

13.

I agree with those States and the Commission. To provide the basis for my view, I shall consider first of all the legislative history of Article 15(1)(c). I shall then analyse the article in the light of the case-law of the Court, including the judgment in Pammer and Hotel Alpenhof. In particular, I shall analyse in detail paragraph 87 of that judgment, the wording of which is at the origin of the present reference for a preliminary ruling.

14.

The Brussels Convention of 1968, which has now been replaced by Regulation No 44/2001, provided for special jurisdiction over consumer contracts in terms which differed significantly from those used in Article 15 of the regulation. According to Article 13(3) of the Brussels Convention, the special jurisdiction applied if the consumer contract was for the supply of services or the supply of goods and ‘in the State of the consumer’s domicile the conclusion of the contract was preceded by a specific invitation addressed to him or by advertising’ and ‘the consumer took in that State the steps necessary for the conclusion of the contract’.

15.

As the Commission has rightly pointed out, the wording of Article 13(3) of the Brussels Convention concerned primarily consumer contracts which had been concluded at a distance. The two situations referred to in the article occur in most – but not all – cases where that type of contract is used. As the Commission notes, there was nothing to preclude the application of Article 13(3) of the Brussels Convention to a situation where a trader travelled to a consumer’s residence to conclude a contract on the spot.

16.

The reason for the changes introduced in Article 15 of Regulation No 44/2001 is the development of marketing techniques, primarily in the field of electronic commerce. That factor led the Commission to propose a new version of Article 13(3) of the Brussels Convention, which had remained substantially unaltered during the legislative process, resulting in the removal of the previous requirement that the consumer must have taken in his State the steps necessary for the conclusion of the contract. ( 5 ) As the Commission stated in the commentary on the proposed Article 15, that amendment ‘means that Article 15, first paragraph, point (3), applies to contracts concluded in a State other than the consumer’s domicile’. ( 6 ) The Commission added that ‘[t]his removes a proved deficiency in the text of old Article 13, namely that the consumer could not rely on this protective jurisdiction when he had been induced, at the co-contractor’s instigation, to leave his home State to conclude the contract’. ( 7 )

17.

The Swiss Confederation and the Commission also refer to the Pocar Report, ( 8 ) which is of considerable interpretative value in relation to Article 15 of the regulation and Article 15 of the Lugano Convention (which is identical to Article 15 of Regulation No 44/2001). Commenting on the article interpreted in these proceedings, that document explicitly states that the connecting factor ‘does not depend on the place where the consumer acts, or on the place where the contract is concluded, which may be in a country other than that of the consumer’s domicile: it attaches importance only to the activities of the other party, which must be pursued in the State of the consumer’s domicile, or directed to that State, perhaps by electronic means’. ( 9 ) According to the report, in those cases, ‘the consumer may bring proceedings in the courts of his own domicile, under Article 16 of the [Lugano] Convention, regardless of the place where the contract was concluded and regardless of the place where a service supplied electronically was enjoyed’. ( 10 )

18.

That interpretation of the provision is bolstered by the fact that Article 15(1)(c) of Regulation No 44/2001 increased the number of ‘consumer contracts’ covered by Article 13 of the Brussels Convention. While the first paragraph of Article 13 of the Brussels Convention limited the field of application of point 3 thereof to contracts ‘for the supply of goods or ... for the supply of services’, Article 15(1)(c) of Regulation No 44/2001 is drafted in more general and broader terms. The new provision covers all contracts, whatever their purpose, if they have been concluded by a consumer with a professional and fall within the latter’s commercial or professional activities.

19.

The Court used the change of wording of Article 15(1)(c) of Regulation No 44/2001 to point out recently, in Ilsinger, that ‘the specific conditions for application that those contracts must fulfil, which were set out in detail in headings (a) and (b) of point 3 of the first paragraph of Article 13 of the Brussels Convention, are now worded more generally in Article 15(1)(c) of Regulation No 44/2001 in order to ensure better protection for consumers with regard to new means of communication and the development of electronic commerce’. ( 11 ) Specifically because the new wording is more protective of consumers’ interests, the Court held in Ilsinger, contrary to its previous rulings on the interpretation of the Brussels Convention, that Article 15 ‘appears ... to be no longer being limited to those situations in which the parties have assumed reciprocal obligations’. ( 12 )

20.

In addition, the Council and the Commission issued a joint declaration on Articles 15 and 73 of Regulation No 44/2001, ( 13 ) confirming the approach previously adopted by the Court in Ilsinger. Referring to the requirement that there must be a consumer contract, the two institutions observed that Article 15 ‘relates to a number of marketing methods, including contracts concluded at a distance through the internet’. ( 14 ) Under no circumstances does the joint declaration rule out the possibility of concluding different types of consumer contract other than distance contracts, thereby confirming the broad interpretation of the provision as far as the field of contractual relationships is concerned.

21.

It follows, therefore, that Article 15(1)(c) of Regulation No 44/2001 does not seek to reduce the number of contracts covered by the special jurisdiction over consumer contracts, but rather quite the opposite. Had the European Union legislature wished to limit that jurisdiction to consumer contracts concluded at a distance, which, moreover, are the subject of harmonisation under European Union law, ( 15 ) it is clear that it would have ensured that the article explicitly stated as much.

22.

In short, unlike the connecting factor included in the old article of the Brussels Convention, the connecting factor used in Article 15(1)(c) is not the place where the consumer is situated but rather the commercial activity which is directed to the Member State of the consumer’s domicile. Accordingly, the relevant factor is now the territory on which the trader wishing to market goods or services seeks to act. ( 16 ) If the market which the trader actively pursues includes the State of domicile of the consumer with whom the trader enters into a contractual relationship, the latter’s activity must be regarded as having been directed to that State.

23.

Therefore, Article 15 of Regulation No 44/2001 introduces a very substantial change of focus vis-à-vis the rule previously laid down in the Brussels Convention, and it does so specifically to ensure that a consumer who carries out preparatory steps via electronic means of communication may still be protected by Article 15(1)(c), even when that consumer travels to the State of the other party to conclude the contract.

24.

In addition to the legislative history of the article interpreted in these proceedings, there are other factors – this time de lege lata – which confirm the view that Article 15(1)(c) of Regulation No 44/2001 is not confined to consumer contracts concluded at a distance.

25.

The aim of the special jurisdiction over consumer contracts is to protect consumers, who are the weak party in the contractual relationship and require specific protection. Recital 13 in the preamble to Regulation No 44/2001 expressly states as much when, in relation to insurance, employment and consumer contracts, it observes that ‘the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules provide for’. ( 17 )

26.

Further, at no point does the wording of either Article 15 or Article 16 of Regulation No 44/2001 refer explicitly to distance contracts. On the contrary, the history of Article 15, as set out in points 16 to 20 of this Opinion, confirms that the special jurisdiction over consumer contracts in Regulation No 44/2001 also encompasses situations in which the trader or the consumer travels to the other party’s address to conclude the contract. ( 18 )

27.

If it were necessary to interpret Article 15(1)(c) of Regulation No 44/2001 as meaning that it applies exclusively to consumer contracts concluded at a distance, many situations involving consumers would be excluded. That list of situations increased exponentially with the emergence of electronic commerce, where it is customary, on the one hand, for the trader to advertise on the internet and to direct his goods or services to a particular market through his website and, on the other, for the consumer to ask for information and to decide to enter into a contract following the advertising he has viewed on the internet. In her Opinion in Pammer and Hotel Alpenhof, Advocate General Trstenjak referred to the case of health services advertised on a website on which consumers who are resident in other Member States are openly invited to use the services of the clinic concerned. ( 19 ) It is also possible to envisage a situation where fragile goods are purchased after advertising material has been sent by email to a consumer who resides in another Member State and the consumer has agreed to the purchase with the trader but prefers to collect the goods in person, which is the time when the contract is concluded.

28.

The above examples demonstrate how, simply by travelling to another Member State to conclude the contract and to take possession of the goods or receive the service, a consumer would cease to be protected by the special jurisdiction in Articles 15 and 16 of Regulation No 44/2001. It is difficult to accept that that factor is of itself sufficient to achieve a result which is clearly at odds with the aim pursued by the provisions governing consumer contracts in Regulation No 44/2001.

29.

Further, if the restrictive interpretation of the article were accepted, the exclusion of the special jurisdiction would be based on a factor which, far from leaving consumers unprotected, should in fact strengthen their protection under Regulation No 44/2001, namely the cross-border movement of consumers. It would be paradoxical if the applicability of an instrument like Regulation No 44/2001 were conditional on the lack of movement of one of the parties to the contract, and all the more so in the case of the weaker party to whom the provision seeks to afford particularly favourable treatment. ( 20 )

30.

A look at other legislative texts related to Regulation No 44/2001 confirms that there is no requirement for a consumer contract to have been concluded at a distance. For example, recital 25 in the preamble to Regulation No 593/2008 on the law applicable to contractual obligations ( 21 ) and Article 6 thereof provide for a conflict-of-laws rule in relation to consumer contracts, the connecting factor for which accords with the rule of jurisdiction in Article 15 of Regulation No 44/2001. At no point does Regulation No 593/2008 refer to the need for a consumer contract to have been concluded at a distance and instead it refers solely to the importance of commercial activity directed to the Member State of the consumer’s domicile. For the purposes of establishing the law applicable to the contract, it is immaterial whether or not the consumer travels to another Member State as a result of the prior activities of the co-contractor. Or at least there is no mention of a requirement that the contract must have been concluded at a distance.

31.

The Court has not ruled categorically on the matter in its case-law to date. However, there are signs that the Court is somewhat inclined in favour of an expansive interpretation of the definition of ‘contract’ laid down in Article 15(1)(c) of Regulation No 44/2001.

32.

In Ilsinger, the Court drew attention to the importance of the fact that Article 15(1)(c) of Regulation No 44/2001 ‘covers all contracts, whatever their purpose’, provided that they have been concluded by a consumer with a professional and fall within the latter’s commercial or professional activities. ( 22 ) That feature – the irrelevance of the purpose of the contact – became even more important when compared with the wording of the forerunner of Article 15 in the Brussels Convention, which restricted jurisdiction to contracts ‘for the supply of goods or ... for the supply of services’. As I stated in point 20 of this Opinion, in Ilsinger the Court used a historical interpretation of that provision to increase the types of consumer contract covered by the special jurisdiction in Article 16 of Regulation No 44/2001. In fact, the Court did not hesitate to depart from earlier case-law, based on the interpretation of Article 13 of the Brussels Convention, which limited its application to consumer contracts giving rise to reciprocal obligations. ( 23 ) After the entry into force of Regulation No 44/2001 and the new version of the article, the Court held in Ilsinger that there was no basis for the exclusion of unilateral consumer contracts.

33.

In her Opinion in Ilsinger, Advocate General Trstenjak reached the same conclusion. In addition to the grounds set out in the judgment, the Advocate General referred to the importance of the phrase, at the beginning of Article 15(1)(c) of Regulation No 44/2001, which states ‘in all other cases’. ( 24 ) I agree that that phrase is sufficiently expressive and it is clear that the word ‘all’ means that there is no justification for any interpretation which limits the number of consumer contracts to which the article applies.

34.

Finally, that brings us directly to the Pammer and Hotel Alpenhof judgment, in particular to its disputed paragraph 87. In that judgment, the Court, sitting as the Grand Chamber, provided an interpretation of Article 15(1)(c) of Regulation No 44/2001 for the first time, with the aim of establishing when the activities of a professional which are advertised on a website are regarded as having been ‘directed’ to a Member State. After setting out a number of criteria, the judgment analyses the facts of the two situations at issue in each case. Referring to the Hotel Alpenhof case, which concerned the jurisdiction of the German courts to hear a dispute between a consumer who was resident in Germany and the proprietor of a hotel situated in Austria, the Court held:

‘85.   In a case such as that between Hotel Alpenhof and Mr Heller, there would appear to be several items of evidence ... such as to demonstrate that the trader directed its activity to one or more Member States other than the Republic of Austria. It is, however, for the relevant national court to ascertain that that is the case.

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.’ ( 25 )

35.

The judgment goes up to here.

36.

As I have made clear from the start, in the light of the wording of paragraph 87, the referring court asks whether the Court of Justice intended to limit the scope of Article 15(1)(c) of Regulation No 44/2001 solely to consumer contracts concluded at a distance. As I also stated at the outset, I believe that the reply should be in the negative, not only on the basis of the arguments set out above but also in the light of the Pammer and Hotel Alpenhof judgment itself.

37.

By stating that, in the situation relating to Hotel Alpenhof, the contract had been concluded at a distance, the Court of Justice was merely drawing attention to a fact rather than to the need to satisfy an obligatory requirement laid down in Regulation No 44/2001. That is also apparent from a reading of the judgment as a whole since, when dealing with the facts of the Pammer case, which was joined to the Hotel Alpenhof case, the Court made no mention of whether the contract in the former case was concluded between the parties at a distance or on the spot. In addition to that, in the Opinion in Pammer and Hotel Alpenhof Advocate General Trstenjak clearly ruled out the exclusive application of Article 15(1)(c) of Regulation No 44/2001 to consumer contracts concluded at a distance. ( 26 )

38.

In my view, paragraph 87 of the Pammer and Hotel Alpenhof judgment draws attention to the distance nature of the contract not in order to stipulate that that is a requirement but rather to exclude an excessively restrictive interpretation of Article 15(1)(c). The purpose of the reference to a distance contract is intended to underline the importance of the requirement of preparatory and prior pre-contractual activity through the internet, which is in turn the result of information directed via the internet to the territory of the consumer’s domicile. I believe that, in referring to a distance contract, the Court was seeking to point out that, in that case, there had not only been preparatory steps before the arrival of the consumer at Hotel Alpenhof but also that a contract had already been concluded between the parties before the keys were handed over.

39.

Accordingly, it is my opinion that Article 15(1)(c) of Regulation No 44/2001 must be interpreted as meaning that it does not require the contract between the consumer and the professional to have been concluded at a distance.

40.

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 Oberster Gerichtshof:

Article 15(1)(c) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters does not require the contract between the consumer and the professional to have been concluded at a distance.