Tuesday, 13 August 2013

The missing link - Opinion of AG Cruz Villalón in Case C-218/12 Emrek v Sabranovic

The interpretation of EU law intended to ease the troubles of cross-border shoppers continues to raise (preliminary) questions. The case of Emrek v. Sabranovic that is currently pending before the Court of Justice of the EU forms another instalment in the line of cases defining the conditions for a consumer to bring proceedings before the courts of his or her own Member State in relation to problems concerning a cross-border contract. It follows up on, among other judgments, Mühlleitner, on which we reported earlier ('Distance is not a factor'). On 18 July 2013, Advocate General Cruz Villalón delivered his opinion in the Emrek case (please note that the English translation is not yet available; the following summary is based on the original Spanish text and Dutch translation). 

Like Mühlleitner, the Emrek case concerns the cross-border sale of a second-hand car. Emrek, a resident in Saarbrücken (Germany), had concluded a contract for the purchase of a second-hand vehicle with Sabranovic, a car dealer in the adjacent municipality of Spicheren (France), at the premises of the latter. At this occasion, Emrek indicated to have learnt about the car seller's business through acquaintances, not through the seller's website. Some time later, Emrek brought proceedings before the court in Saarbrücken to enforce a contractual guarantee against Sabranovic. The court, however, considered that according to the Brussels I Regulation it had no jurisdiction to hear the case, since the seller's professional activities had not been directed at the Member State in which the buyer was domiciled, Germany. The court of appeal to which the case was then presented, referred the following questions to the CJEU:

'In cases in which a trader's internet presence satisfies the "directing" requirement, does Article 15(1)(c) of Regulation (EC) No 44/2001 require, as a further unwritten condition, that the consumer was induced to enter into the contract by the website operated by the trader and consequently that the internet presence must be a causal factor in regard to the conclusion of the contract?

In so far as a causal link between the "directing" requirement and the conclusion of the contract is necessary: does Article 15(1)(c) of Regulation No 44/2001 also require that the contract was concluded as a distance contract?'

AG Cruz Villalón is of the opinion that a causal link between the information presented on the seller's website and the consumer's decision to enter into the contract is not a condition for allowing the consumer to bring a claim in his or her home country. However, the existence of such a causal link may be considered to be a qualified indication for answering the question whether a business's activity was directed at the consumer's country or not.

Furthermore, according to the AG, in case a qualified indication such as a causal link is absent, this should in principle be compensated by the presence of one or more indications of similar strength. Such an indication might be found in the fact that two municipalities form part of an urban agglomeration, which the national judge should establish.

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