Austria, Austrian Supreme Court, 28 January 2011 6Ob261/10s

Identification of the case

• Article 15 (1) (c) and (3) of Council Regulation (EC) No 44/2001 of December 22nd 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters

Summary of the case

Mr P.:

Mr P., residing in Austria, booked through an intermediary company’ established in Germany, a voyage by freighter from Trieste (Italy) to the Far East organised by Reederei Karl Schlüter, a company also established in Germany.

The intermediary company, which operated in particular via the internet, described the voyage on its website, indicating that there was a fitness room, an outdoor swimming pool, a saloon and video and television access on the vessel. Reference was also made to three double cabins with shower and toilet, to a separate living room with seating, a desk, carpeting and a fridge, and to stopping at ports of call from which excursions into towns could be undertaken.

Mr P. refused to embark and sought reimbursement of the sum which he had paid for the voyage, on the ground that that description did not, in his view, correspond to the conditions on the vessel. Since Reederei Karl Schlüter reimbursed only a part of that sum, Mr P. claimed payment of the balance, roughly EUR 5 000, together with interest before an Austrian district court of first instance.

Reederei Karl Schlüter objecteded that it did not pursue any professional or commercial activity in Austria and raised the plea that the court lacked jurisdiction.

That plea was dismissed at first instance, the court holding that it had jurisdiction on the ground that the voyage contract was a consumer contract, namely a contract for package travel, and that the intermediary company had engaged in advertising activity in Austria on behalf of Reederei Karl Schlüter by means of the internet.

The appellate court on the other hand declared by judgment, that the Austrian courts lacked jurisdiction, holding that the voyage contract constituted a contract of transport not covered by Section 4 of Chapter II of Regulation No 44/2001. The fact that the proposed voyage, namely a lengthy crossing from Europe to the Far East, involved a degree of comfort did not transform the voyage contract into a consumer contract.

Mr P. appealed on a point of law against that judgment.

Hotel Alpenhof:

After finding out about a hotel from its website, Mr H., who resides in Germany, reserved a number of rooms for a period at the Hotel Alpenhof GesmbH, a company, which operates the hotel bearing the same name located in Austria. His reservation and the confirmation thereof were effected by email, the hotel’s website referring to an address for that purpose.

Mr H. found fault with the hotel’s services and left without paying his bill despite Hotel Alpenhof’s offer of a reduction. Hotel Alpenhof then brought an action before an Austrian district court for payment of a sum of roughly EUR 5 000.

Mr H. raised the plea that the court before which the action had been brought lacked jurisdiction. He submited that, as a consumer, he can be sued only in the courts of the Member State of his domicile, namely the German courts, pursuant to Article 15(1)(c) of Regulation No 44/2001.

The district court in first instance and the regional court in second instance both dismissed the action before them, holding that the Austrian courts lacked jurisdiction to hear it. They stated that the concept of an activity ‘directed to’ the Member State of the consumer’s domicile covers both the operation of an interactive website enabling a contract to be concluded with the consumer on line, that is to say, electronically on the trader’s site itself, and a website not providing such a possibility and presenting only advertising. According to those courts, even in the latter situation the activity is directed to the consumer in other Member States, given the fact that internet advertising crosses borders. This ‘directing abroad’ can be excluded only by an express statement concerning the trader’s business contact with consumers domiciled in one or more other specified Member States. The activity is also directed to the Member State of the consumer where the latter finds out about the trader’s services through a website and the subsequent reservation is made by means of the email address, geographical address or telephone number indicated on that website.

Hotel Alpenhof appealed on a point of law to the Supreme Court.

• Civil judicial enforcement

Dispute on Austrian jurisdiction.

Questions to the Supreme Court for a preliminary ruling in the case of P.:

‘1. Does a “voyage by freighter” constitute package travel for the purposes of Article 15(3) of [Regulation No 44/2001]? 2. If the answer to Question 1 is in the affirmative: is the fact that an intermediary’s website can be consulted on the internet sufficient to justify a finding that activities are being “directed” [to the Member State of the consumer’s domicile] within the meaning of Article 15(1)(c) of Regulation No 44/2001?’

Question to the Supreme Court for a preliminary ruling in the case of Hotel Alpenhof:

‘Is the fact that a website of the party with whom a consumer has concluded a contract can be consulted on the internet sufficient to justify a finding that an activity is being “directed” within the meaning of Article 15(1)(c) of [Regulation No 44/2001]?’

In the case of P. the Supreme Court had doubts regarding the criteria applicable to the concept of ‘package travel’ and observed that in this instance the question arises as to whether the services offered are comparable to a cruise, which would justify the conclusion that there is a ‘package’ and, accordingly, a contract of transport covered by Section 4 of Chapter II of Regulation No 44/2001. If such a contract were involved, Article 15(1)(c) of Regulation No 44/2001 could be applicable and it would then be helpful to know what criteria must be met by a website in order for the activities engaged in by the trader to be capable of being regarded as ‘directed to’ the Member State of the consumer within the meaning of that provision. The Supreme Court pointed out, that the courts of first and second tiers had not made specific findings as to the way in which the voyage contract was concluded, the role played by the website or the links between Reederei Karl Schlüter and the intermediary company.

In the case of Hotel Alpenhof the Supreme Court was not sure whether the ECJ would answer its second question submitted in case of P., an answer being dependent upon the answer given to the first question, and considered it necessary to refer its question to the ECJ for a preliminary ruling.

Role of the Charter and role of the general principles on enforcement

Council Regulation (EC) No 44/2001 of December 22nd 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters directly applicable, so no room for application of national provisions.

Recital 13 in the preamble to Regulation No 44/2001 states that, in relation to consumer contracts, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules provide for.

Regarding the question of national jurisdiction the rights to an access to a court and to a fair trial (Art 47 CFR and Art 6 ECHR) are protected.

Elements of judicial dialogue

• Direct dialogue between CJEU and National court (preliminary reference)

• C-237/97, AFS Intercultural Programs Finland

Preliminary reference.

Uniform interpretation and application of EU-law on national jurisdiction.

Avoiding double or lack of jurisdiction. 

Additional notes on the decision