When may professional sellers be sued in consumers’ Member State?

European Court of Justice, case C-190/11

Categories: Consumer Law
Typology: Case Law

In a preliminary ruling referred by Austrian Supreme Court, the CJEU clarified that, in some circumstances, it is possible for consumers to file an action before the courts of their own country against a seller based in a different EU member state, even when the contract has not been stipulated “from a distance” but the consumer has travelled to the trader’s Member State to purchase the goods.

In the instant case, an Austrian consumer had bought a car, which had been advertised on the internet, from a dealer established in Germany. The consumer had got in touch with the seller via email, booked the car and subsequently travelled to Germany to finalise the purchase and collect the vehicle. However, upon her return, she found out that the car was defective, so she decided to bring an action against the dealer before the Austrian courts. A preliminary issue regarding the court’s jurisdiction was raised, because Regulation 2001/44/EC provides the possibility for consumer claimants to sue commercial or professional defendants established in a different EU State before the consumer’s Member State courts only if the provision of the goods or services was “directed” to this latter’s State. In the commented decision, the difficulty lied in the fact that the consumer had travelled to a different country, and the seller had not apparently “directed” the sale specifically to Austria, but had simply advertised the product on the internet; thus, the defendant claimed that there were no significant elements to consider the transaction as genuinely cross-border –everything, including the contract’s stipulation, had happened in Germany.

The CJEU regarded that in circumstances such as the one at stake, the transaction should be considered as cross-border for the purposes of Regulation 2001/44/EC. In fact, although the consumer had travelled to Germany to finalise the contract, and the seller had done nothing to encourage purchases specifically from Austria, it was nonetheless true that the website where the commercial ad had been placed was accessible also in this latter State; in addition, there had been contacts (email exchanges) and arrangements between consumer and professional which were made “at a distance”, when the claimant was still in her country. This was sufficient to establish the jurisdiction of the Austrian Courts, pursuant to the aforementioned regulation.

In conclusion, the CJEU’s decision established the following principle: consumers may sue professional traders established in a different EU country before the courts of the formers’ Member State if (i) the trader domiciled in another Member State pursues commercial or professional activities in the Member State of the consumer’s domicile or, by any means, directs such activities to that Member State and (ii) the contract at issue falls within the scope of such activities, the consumer may bring proceedings before the courts of his own Member State against the trader, even if the contract was not concluded at a distance because it was signed in the Member State of the trader.

(Altalex, 10 June 2013. Note of Stefano Biondi)

JUDGMENT OF THE COURT (Fourth Chamber)

6 September 2012

Text of the Court's Judgment

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