Tuesday, 5 June 2012

Special consumer jurisdiction not only for contracts concluded online: AG's opinion in CJEU case C-190/11 (Mühlleitner)

24 May 2012: AG's Cruz Villalón opinion in the CJEU case C-190/11 (Mühlleitner)

Some time ago we discussed two CJEU cases Pammer and Hotel Alpenhof (ECJ instructs businesses what NOT to publish on their website to keep operations domestic only...) in which matters of international private law that influence consumer protection were discussed. In the case Mühlleitner, once again a special jurisdiction in consumer cases is being discussed.

Daniela Mühlleitner lives in Austria and was looking online for a second-hand car for her private use. She filled in a form with the characteristics of a car she wanted on the website: www.mobile.de and one particular link to an offer caught her interest. Upon clicking on that link, she was re-directed to a website of Ahmad Yusufi and Wadat Yusufi (the defendants). She contacted them by phone, was informed that the car chosen by her was no longer available but they had similar ones to offer. She agreed to receive an email with more information about available cars including photos. Moreover, she indicated to the sellers that she lived in Austria and it was not considered to be an obstacle in concluding a sales contract. Some time later she went to Germany and concluded the sale contract with the defendants. Soon afterwards, upon her return to Austria with the car, she discovered defects in it. Since she could no longer get in touch with the sellers, she started legal proceedings to claim re-payment of the sale price and damages. The Austrian courts did not believe they had jurisdiction over these proceedings.

As a reminder, article 15 (1) (c) of the Regulation 44/2001 declares that the courts of consumer's country of domicile could have jurisdiction if the seller conducted his activity in this country or directed his activities to this country. In case, Pammer and Hotel Alpenhof the CJEU indicated certain factors that should be taken into account in order to determine whether sellers directed their activity to consumers from other Member States.

The question in Mühlleitner case was whether article 15 (1) (c) of the Regulation should be applied in this case, i.e. whether it applies only in situations of contracts concluded at a distance.

The AG Cruz Villalón argues that the applicability of this article is not limited only to contracts concluded at a distance. (Par.12) Firstly, historical arguments are being raised - previously binding Treaty of 1968 contained a similar provision whose application was neither limited to distance contracts. (Par. 15) Moreover, official statements of the Council and the Commission as well as previous judgments of the CJEU (e.g., Ilsinger) determine that article 15 refers to a number of sales methods, among others also distance sales contracts concluded online. (Par. 20) Therefore, it is clear that the Regulation did not aim at limiting a number of consumer contracts to which article 15 and a special jurisidiction in consumer cases would apply. (Par. 21)

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