Wednesday, 19 May 2010

Does having a website mean you operate worldwide? - opinion of AG in ECJ case C-585/08 Pammer and C-144/09 Hotel Alpenhof

18 May 2010: ECJ Advocate General's opinion in case C-585/08 Pammer and in case C-144/09 Hotel Alpenhof

The opinion of the AG in these two cases is fascinating, mostly because the AG goes beyond just answering the questions asked by the national courts and decides to tackle (for the first time) some problems with interpretation of the contracts concluded online.

Mr Pammer lives in Austria and decided to book a trip with a German company specializing in boat excursions. The Reederei Karl Schlüter had a website that was available to Mr Pammer also in Austria and via this website Mr Pammer booked a trip for two people from Triest to Fernost. Unfortunately, the description of the trip did not correspond to the reality (how often did we hear that?). The cabin on the boat was 1-person only instead of 2-people, there was no outdoor swimming pool, no fitness centre, no functioning TV, no possibility to lie nor sit on the deck. Mr Pammer decided to cancel his trip and demanded his money back.

Ms Heller lived in Germany and found a website of an Austrian Hotel Alpenhof fascinating. She decided to use this website to book a stay there for her and her friends for the period of a week including the New Year's Eve. Ms Heller arrived at the hotel at the reserved time, however, she then proceeded to leave without paying fully for her stay.

The main question that was raised by the national courts in these cases concerned the jurisdiction matters. In which country should the claim be brought: Germany or Austria? In this respect interpretation of the Article 15 Sec. 1c of the Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters was needed:

'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, (...) if (...) the contract has been concluded with a person who 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 or to several States including that Member State, and the contract falls within the scope of such activities.'

If a company has a website that can be accessed by consumers domiciled in another Member State of the European Union - is that enough to consider this company as 'pursuing commercial or professional activity in the MS of the consumer's domicile'?

The AG's opinion is clear: the sole fact that the website is accessible from another country does not mean that the company who owns it pursues commercial or professional activity in this country. It does not matter whether that website is active (enables the consumer to immediately conclude a contract) or passive. (Par. 74)

Therefore, it is for the national court to determine in a given case whether under all circumstances of the given case the company was pursuing commercial or professional activity in a MS of the consumer's domicile. The AG thought he should give certain guidelines to the national courts on this matter.

Firstly, the content of the website should be taken into account. (Par. 78) The factors that might point to the company pursuing a commercial or professional activity in another Member State are the following information that could be found on the website:
  • international prefix before the contact telephone or fax number
  • serviceline for consumer's from abroad
  • route description from other countries to the place of destination
  • possibility to subscribe to a newsletter for consumers from other countries
  • possibility to ask a question about e.g. 'in stock availability' for consumers from other countries
  • possiblity to conclude a contract online with fulling in the address of another country

What will not be seen as sufficient, is if the company just gives its e-mail address. Although, this means of communication can be used internationally, it is not seen as sufficient to indicate that the company intends to conduct business abroad. (Par. 79)

Furthermore, it can be decisive whether the company pursues commercial or professional activities in a MS of the consumer's domicile if it already conducted such activity with other consumers from that MS. It has to be decided on a case by case basis what number of such contracts concluded would be seen as sufficient. The AG mentions that if the company traditionally concludes contracts with consumers from a particular MS then there can be no doubt that this company pursues commercial or professional activity in this MS. However, if that company concluded one other contract with a consumer from a given MS - that might not be a sufficient proof thereof. (Par. 80)

In certain cases also the language of the website may be an indication that a company directs its activities to consumers from a certain Member State. Especially, if there is a choice of the language in which the website appears left to the consumer. (Par. 81-83)

A following factor might be the domain used by the company. If a company based in England uses a domain of Spain '.es' that might mean that this company pursues commercial or professional activity among Spanish consumers. (Par. 84-85)

Finally, the fact that the consumers from a given Member State receive e-mails with links to the website of a given company or find these links on other national websitees, might be an indication that this company pursues its commercial or professional activity in a given MS. Even if the company was unaware that such e-mails would be sent out, that falls within its commercial risk. (Par. 88) It should also take responsibility for advertisements appearing in other media than online, e.g. TV or radio. (Par. 89)

The AG thinks, however, that there should be a possibility given to the companies to announce clearly on their websites that they do not pursue commercial or professional activity in certain countries. Such limitation is acceptable if it does not infringe other EU rights and obligations. (Par. 99)

In the Pammer case there was another question asked: whether the boat trip could be seen as a package travel, i.e. a transport that provides for a combination of travel and accommodation - under Article 15 Sec. 3 of the Council Regulation No. 44/2001. All other transport contracts are namely excluded from the scope of application of this Regulation.

The AG had no doubts that this is indeed the case. (Par. 50) The boat trip as offerred in the given case combined travel - from Triest to Fernost - and provided accommodation for the time of the travel within the same joint price. (Par. 42) Furthermore, the main purpose of this boat trip was not just pure transportation, but rather providing the consumers with the possibility to sightsee on their way from one place to another. The company was responsible not only for the quality of the transportation but also for the quality of entertainment and accommodation. (Par. 43) AG thought that this boat trip would even fall under the description of the package travel in Article 2 Sec. 1 of the Package Travel Directive 90/314.

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