#5020 - Pammer - Conflict of Laws BCL

Pammer (2010)

Facts

The Freighter Dispute

This dispute, between Mr Pammer, who resides in Austria, and Reederei Karl Schlüter, a company established in Germany, concerns a voyage by freighter from Trieste (Italy) to the Far East organised by that company which gave rise to a contract between it and Mr Pammer ('the voyage contract'). Mr Pammer booked the voyage through Internationale Frachtschiffreisen Pfeiffer GmbH, a company whose seat is in Germany ('the intermediary company').

Mr Pammer 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.

Hotel Alpenhof dispute

Hotel Alpenhof, a company which operates the hotel bearing the same name located in Austria, is in dispute with a consumer, Mr Heller, who resides in Germany.

After finding out about the hotel from its website, Mr Heller reserved a number of rooms for a period of a week around 1 January 2008. His reservation and the confirmation thereof were effected by email, the hotel's website referring to an address for that purpose.

Mr Heller is stated to have found fault with the hotel's services and to have left without paying his bill despite Hotel Alpenhof's offer of a reduction. Hotel Alpenhof then brought an action before an Austrian court, the Bezirksgericht Sankt Johann im Pongau, for payment of a sum of roughly EUR 5 000.

Holding

Whether a freighter/cruise falls under Art. 15(3)

It must therefore be determined whether a voyage by freighter such as that at issue in the main proceedings corresponds to the concept of 'package' as defined in Directive 90/314.

It is not in dispute that, apart from transport, that voyage by freighter involved, for an inclusive price, accommodation too and that the voyage was for a period of more than 24 hours. Accordingly, such a service fulfils the necessary conditions for a 'package' within the meaning of Article 2(1) of Directive 90/314 and falls within the definition, set out in Article 15(3) of Regulation No 44/2001 read in the light of Article 2(1) of the directive, of a contract of transport at an inclusive price.

The answer to the first question in Case C-585/08 therefore is that a contract concerning a voyage by freighter, such as that at issue in the main proceedings, is a contract of transport which, for an inclusive price, provides for a combination of travel and accommodation within the meaning of Article 15(3) of Regulation No 44/2001.

Changes in the Regulation as compared to the Convention

The European Union legislature has thus removed the conditions requiring, first, the trader to have addressed a specific invitation to the consumer or to have advertised in the State of the consumer's domicile and, second, the consumer to have taken in that State the steps necessary for the conclusion of the contract, replacing them with conditions applicable to the trader alone. The trader must pursue its commercial activities in the Member State of the consumer's domicile or, by any means, direct such activities to that Member State or to several States including that Member State, and the contract must fall within the scope of such activities.

The wording of Article 15(1)(c) must be considered to encompass and replace the previous concepts of a 'specific invitation addressed' to the consumer and 'advertising', covering, as the words 'by any means' indicate, a wider range of activities… This change, which strengthens consumer protection, was made because of the development of internet communication, which makes it more difficult to determine the place where the steps necessary for the conclusion of the contract are taken and at the same time increases the vulnerability of consumers with regard to traders' offers.

Meaning of “directs activities to a member-state”

It is not clear, however, from Article 15(1)(c) of Regulation No 44/2001 whether the words 'directs such activities to' refer to the trader's intention to turn towards one or more other Member States or whether they relate simply to an activity turned de facto towards them, irrespective of such an intention.

The question which this raises is whether intention on the part of the trader to target one or more other Member States is required and, if so, in what form such an intention must manifest itself.

Conventional forms of advertisement – intention is implicit

That intention is implicit in certain methods of advertising.

The classic forms of advertising expressly referred to in the previous paragraph involve the outlay of, sometimes significant, expenditure by the trader in order to make itself known in other Member States and they demonstrate, on that very basis, an intention of the trader to direct its activity towards those States.

Mere availability of online advertisement is not enough

That intention is not, on the other hand, always present in the case of advertising by means of the internet. Since this method of communication inherently has a worldwide reach, advertising on a website by a trader is in principle accessible in all States, and, therefore, throughout the European Union, without any need to incur additional expenditure and irrespective of the intention or otherwise of the trader to target consumers outside the territory of the State in which it is established.

It does not follow, however, that the words 'directs such activities to' must be interpreted as relating to a website's merely being accessible in Member States other than that in which the trader concerned is established.

It is accordingly clear from the proposal for a regulation that is mentioned in paragraph 43 of the present judgment that the European Union legislature rejected a suggestion by the Commission seeking the insertion, in the preamble of Regulation No 44/2001, of a recital according to which the marketing of goods or services by electronic means accessible in a Member State constitutes an activity 'directed to' that State.

This interpretation is also borne out by the joint declaration of the Council and the Commission at the time of the adoption of Regulation No 44/2001, reproduced in recital 24 in the preamble to Regulation No 593/2008, according to which the mere fact that a website is accessible is not sufficient for Article 15(1)(c) of Regulation No 44/2001 to be applicable.

Consequently, it must be held that, in order for Article 15(1)(c) of Regulation No 44/2001 to be applicable, the trader must have manifested its intention to establish commercial relations with consumers from one or more other Member States, including that of the consumer's domicile.

It must therefore be determined, in the case of a contract between a trader and a given consumer, whether, before any contract with that consumer was concluded, there was evidence demonstrating that the trader was envisaging doing business with consumers domiciled in other Member States, including the Member State of that consumer's...