EUPillar C-190/11 Daniela Mühlleitner v Ahmad Yusufi and Wadat Yusufi (Fourth Chamber)

Summary

This case on Art 15(1)(c) of Brussels I was referred to the CJEU in proceedings between Ms Mühlleitner (domiciled in Austria) and Mr A. Yusufi and Mr W. Yusufi concerning the rescission of a sale contract of a motor vehicle, reimbursement of the purchase price, and a claim for damages. Ms Mühlleitner searched on the internet for a German car to buy for her private use. Surfing the web she found an offer from the defendants who operated a motor vehicle retail business via Autohaus Yusufi GbR (a partnership established in Germany). To get more information, she contacted the defendants, using the telephone number stated on the firm’s website, which included an international dialling code. As the car in question was no longer available, she was offered another car, details of which were subsequently sent by email. She was also informed that her Austrian nationality would not prevent her from acquiring a vehicle from the defendants. She went to Germany, signed the contract there and bought the car from the defendants. On her return to Austria with the car, she discovered that it was defective. She asked the defendants to repair it, but was refused. She brought proceedings in Austria by relying on Art 15(1)(c) of Brussels I. The defendants contested her status of ‘consumer’ and the jurisdiction of the Austrian courts, arguing that the dispute should be brought in Germany. They also submitted that they did not direct their activities to Austria and that she had concluded the contract at the seat of their undertaking in Germany. The first instance court dismissed the action by declaring that it lacked jurisdiction. It found that the fact that the website of Autohaus Yusufi could be consulted in Austria was not enough to give the Austrian courts’ jurisdiction, the contract had been concluded on the basis of Ms Mühlleitner’s telephone call, and it did not follow from the correspondence subsequently sent that the defendants had directed their activities to Austria. The decision was confirmed on appeal. That court recalled the joint statement by the Council and the Commission on Arts 15 and 73 of Brussels I according to which a purely ‘passive’ internet site is not in itself sufficient for it to be considered that an activity is directed to the consumer’s State, it noted that the website of Autohaus Yusufi had the characteristics of such a ‘passive’ site. Moreover, observing that, according to the joint statement, the contract must be concluded at a distance, it found that that was not so in the present case. At the appeal on a point of law, the referring court found that she was a consumer. By considering paras 86-87 of the joined cases C 585/08 and C 144/09 Pammer and Hotel Alpenhof, it asked the CJEU whether Art 15(1)(c) of Brussels I applies only to distance contracts. The CJEU took account of a literal, historical and teleological interpretation of Art 15(1)(c) and gave a negative answer. It firstly stated that the provision does not expressly make its application conditional on the fact that the contracts falling within its scope have been concluded at a distance. It then took account of the explanatory memorandum accompanying the Brussels I Proposal (COM(1999) 348 final) where the Commission considered that ‘the fact that the condition in old Article 13 [of the Brussels Convention] that the consumer must have taken the necessary steps in his State has been removed means that Article 15, first paragraph, point (3), [now Article 15(1)(c) of the Brussels I Regulation] applies to contracts concluded in a State other than the consumer’s domicile’. It also noted that paras 86 and 87 of Pammer and Hotel Alpenhof were just the Court’s rebuttal of arguments made in that case and were not positive statements of legal conditions to be followed in subsequent cases. The Court rightly held that Art 15(1)(c) does not require the contract between the consumer and the trader to be concluded at a distance.