Austria, Regional Court Feldkirch, 21 November 2013 3 R 233/12f

Identification of the case

• Freedom to conduct a business (art. 16 CFREU)
• Right to property (art. 17 CFREU)
• Consumer protection (art. 38 CFREU)
• Right to an effective remedy and to a fair trial (art. 47 CFREU)

• § 93 Jurisdiktionsnorm (§ 93 Austrian fundamental judicial act)

• art. 16 (1) Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters

Summary of the case

The plaintiffs are domiciled in Bludenz (Austria), which lies within the jurisdiction of the Bezirksgericht Bludenz (District Court, Bludenz). They booked and paid, as private individuals, a package holiday to Egypt on the website of lastminute.com. On its website, lastminute.com, a company whose registered office is in Munich (Germany), stated that it acted as travel agent and that the trip would be operated by TUI, which has its registered office in Vienna.

In Egypt the plaintiffs noticed a mistake regarding the hotel in the booking confirmation. They paid a surcharge to be able to stay in the hotel they initially booked on lastminute.com’s website.

Finally, in order to recover the surcharge paid and to be compensated for the inconvenience, the plaintiffs brought an action before the Bezirksgericht Bludenz seeking payment from lastminute.com and TUI.

The Bezirksgericht Bludenz limited its examination to verifying whether it had jurisdiction to hear the action and dismissed the action in as far as it was brought against TUI on the ground that it lacked local jurisdiction. According to that court, Regulation No 44/2001 was not applicable to the dispute between the plaintiffs and TUI as the situation was purely domestic. It held that, in accordance with the applicable provisions of national law, the court with jurisdiction was the court of the defendant’s domicile in Vienna.

The plaintiffs brought an appeal (‘Rekurs’) against that decision before the referring court, claiming that the booking they made was from the outset inseparably linked, as a uniform legal transaction, with lastminute.com as the travel agent and with TUI as the travel operator.

By the decision reported on the Regional court Feldkirch decided on the appeal. In order to do so it initiated the preliminary ruling procedure.

• Civil judicial enforcement

appeal, annulment of dismissal of action because of lack of jurisdiction, decision in respect of jurisdiction, compensation of plaintiffs for costs of intermediate proceeding regarding jurisdiction.

Is Article 16(1) of [Regulation No 44/2001], which confers jurisdiction on the courts for the place where the consumer is domiciled, to be interpreted as meaning that, in the case where the other party to the contract (here, a travel agent having its seat abroad) has recourse to a contracting partner (here, a travel operator having its seat in the home country), Article 16(1) of Regulation No 44/2001 is, for the purpose of proceedings brought against those two parties, also applicable to the contracting partner in the home country?

The province court Feldkirch decision’s reasoning refers to binding effects of the CJEU judgment only. It states explicitly its decision has to be made in accordance to the CJEU judgment “without further reasoning”. Consequently the province court Feldkirch states, that the district court Bludenz has jurisdiction to hear the plaintiff’s action against TUI also. Consequently TUI’s defending plea declining the district court’s Bludenz jurisdiction has to be dismissed. TUI has to compensate the plaintiff’s legal costs and bear 50% of the costs of the intermediate proceeding regarding jurisdiction.

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

The deciding court as well as the CJEU do not refer to the Charter. They do not provide information if they find the Charter to be applicable.

No direct reference to national provisions as legal basis for principles and rights above. Only reference to §§ 41, 50, 52 Zivilpozessordnung (§ 41, § 50, § 52 Austrian civil proceedings act) regarding the decision on costs of proceedings.

No direct relevance as the decision primarily states which Austrian court has jurisdiction over the action against TUI. The costs of proceedings (EUR 128,11 including VAT) and the plaintiff’s legal costs (EUR 322,54 including VAT) to be compensated by TUI are not excessively high. TUI’s obligation to bear these low costs is obviously in line with the limits to be derived from fundamental rights (Art 6 and 13 ECHR and Art 47 CFREU).

• Equivalence
• Effectiveness

The deciding court applied the allocation of jurisdiction between the respective courts according to art. 16 (1) Council Regulation (EC) No 44/2001 as effective as it would have done by applying Austrian law.

In accordance with the principle of effectiveness the deciding court applied art. 16 (1) Council Regulation (EC) No 44/2001.

Elements of judicial dialogue

• Direct dialogue between CJEU and National court (preliminary reference)
• Dialogue between high court - lower instance court at national level

Preliminary reference. 

Conform interpretation with EU law as interpreted by the CJEU.

To find out which Austrian court has jurisdiction to hear the action.

Clarified Jurisdiction of the district court Bludenz.

Additional notes on the decision

Clarified allocation of jurisdiction for similar cases in the future.