Thursday, 17 November 2011

Lindner - Brussels I and the consumer that went AWOL

Today, the Court of Justice of the EU (CJEU) gave its judgment in Lindner. The facts of the case can be found in an earlier post on this blog. Basically, the questions put to the Court all come back to one point: does the consumer protection provision laid down in Article 16 of Regulation 44/2001 on jurisdiction (the Brussels I Regulation) also apply to consumers who left their last domicile without giving notice of a change of address? Or, in other words, does Article 16 of the Regulation apply to consumers who have gone AWOL?

The Court answers with an unequivocal 'yes'. It states at para. 55 of the judgment:

'in a situation such as that in the main proceedings, in which a consumer who is a party to a long-term mortgage loan contract, which includes the obligation to inform the other party to the contract of any change of address, renounces his domicile before proceedings against him for breach of his contractual obligations are brought, the courts of the Member State in which the consumer had his last known domicile have jurisdiction, pursuant to Article 16(2) of that regulation, to deal with proceedings in the case where they have been unable to determine, pursuant to Article 59 of that regulation, the defendant’s current domicile and also have no firm evidence allowing them to conclude that the defendant is in fact domiciled outside the European Union'.

Therefore, the allocation of jurisdiction to the courts of the Member State in which the consumer has his domicile - guaranteed by Article 16 in order to protect consumers from costly, far-away proceedings in the professional party's court of choice - is also valid in situations where we only know the consumer's last domicile. It is noteworthy, however, that in this case the persuasive arguments are not based on consumer protection. Rather, the CJEU refers to wider objectives of the Regulation which apply to the consumer and his counterparty alike:
  • 'strengthening the legal protection of persons established in the European Union, by enabling the applicant to identify easily the court in which he may sue and the defendant reasonably to foresee before which court he may be sued' (at para. 44);
  • avoiding a situation 'in which the fact that it is not possible to identify the current domicile of the defendant precludes determination of the court having jurisdiction, thereby depriving the applicant of his right to bring proceedings' (para. 45);
  • and: 'the criterion of the consumer’s last known domicile ensures a fair balance between the rights of the applicant and those of the defendant precisely in a case such as that in the main proceedings, in which the defendant was under an obligation to inform the other party to the contract of any change of address occurring after the long-term mortgage loan contract had been signed' (para. 46).
So far, the Court stays within the logic and system of the Regulation (to which it refers in para. 43). The cherry on the pie, however, is in the final paragraphs of the judgment, where the Court considers the requirements to be complied with in the subsequent proceedings, referring to the Charter of Fundamental Rights of the EU. It had been pointed to the Charter by several Member States (see the Opinion of the AG). Referring explicitly to Article 47 of the Charter, the Court emphasizes that 'proceedings leading to the delivery of judicial decisions take place in such a way that the rights of the defence are observed (see Case 125/79 Denilauler [1980] ECR 1553, paragraph 13, and Case C‑394/07 Gambazzi [2009] ECR I‑2563, paragraph 23)' (para. 48-49). Fundamental rights, such as respect for the rights of the defence, however, do not constitute unfettered prerogatives and may be subject to restrictions (Gambazzi, para. 29). Applied to the case at hand, the Court states:

'52. As regards the requirement relating to the need to avoid a disproportionate interference with the rights of the defence, it must be pointed out that this applies in particular for the interpretation of Article 26(2) of Regulation No 44/2001. That provision must be understood as meaning that a court having jurisdiction pursuant to that regulation may reasonably continue proceedings, in the case where it has not been established that the defendant has been enabled to receive the document instituting the proceedings, only if all necessary steps have been taken to ensure that the defendant can defend his interests. To that end, the court seised of the matter must be satisfied that all investigations required by the principles of diligence and good faith have been undertaken to trace the defendant.

53. It is true that, even if those conditions are satisfied, the possibility of taking further steps in the proceedings without the defendant’s knowledge by means, as in the case in the main proceedings, of notification of the action served on a guardian ad litem appointed by the court seised constitutes a restriction of the defendant’s rights of defence. That restriction is, however, justified in the light of an applicant’s right to effective protection, given that, in the absence of such proceedings, that right would be meaningless.'

The application and interpretation of the Charter in this context gives some insight into the role that fundamental rights play in the EU legal order. It is however not immediately obvious what the 'rights of defence' include, even after the Court's decision. One may for instance still argue about the outcome - the AG, after all, considered that the appointment of a guardian without the consumer's knowledge and consent is not enough to assume submission to the jurisdiction of the court under Article 24 of the Regulation. The Court seems to attach greater emphasis to the need for someone to be there and represent the consumer, even in the consumer's absence.

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