EUPillar Test Achat ASBL v Easy-Jet - Comm. Namur, 10 March 2010

Summary

The claimant is a consumer organisation which sues the airline company Easy-Jet for violations of consumer legislation it its general terms and conditions. The defendant, seated in the UK, contests the international jurisdiction of the Belgian courts. The Court considers that one of the objectives of the Brussels I Regulation was to introduce a coherent mechanism to determine the jurisdiction of the courts in the Member States. The defendant had argued that in this case, the approach is incoherent because their might be a difference in jurisdiction when the action is considered from a contractual viewpoint, i.e. when introduced by a consumer, or from an extra-contractual viewpoint, i.e. when introduced by a consumer organisation. The Court therefore examines if the solutions applied in contractual and extra-contractual cases respectively, lead to a different outcome in this case. In matters relating to contract, the courts of the place of performance of the obligation in question have jurisdiction (Art. 5(1)(a)). In the case of provision of services, Art. 5(1)(b) defines this place of performance as the place in a Member State where these services were provided. The Court cites the Rehder v. Air Baltic case of the ECJ (C-204/08) and decides that since the flights depart from an airport in Belgium, this is where the services were provided. In matters relating to tort, the situation is different. Here, the courts for the place where the harmful event occurred or may occur have jurisdiction. Proceedings initiated by consumer organisations are extra-contractual in nature (ECJ, C-167/00, Henkel). The Court considers that Easy-Jet directs its activities, through its website, to Belgian consumers. The analysis leads to Belgium on both occasions. Therefore, the courts of Belgium have jurisdiction. With regard to the applicable law, the defendant refers to a choice of law clause in its general terms and conditions in favour of the laws of the United Kingdom. The claimant seeks the application of the Belgian Law on commercial practices and the provision of information to and the protection of consumers of 14 July 1991, which contains mandatory provisions for consumer protection. First of all, the Court decides that consumer protection falls within the meaning of unfair competition and acts restricting free competition, and that therefore Art. 6 Rome II Regulation is applicable. Art. 6(1) Rome II Regulation provides that the law applicable to a non-contractual obligation arising out of an act of unfair competition shall be the law of the country where competitive relations or the collective interests of consumers are, or are likely to be, affected. In this case, Belgian law is applicable. The law applicable under Art. 6 may not be derogated from by an agreement (cf. Art. 6(4)). This is the solution imposed by the Regulation, even if the Court understands the objections of Easy-Jet who will be faced with different applicable laws according to the Member State where the company is being sued. However, this does not go against the stated objective of the Regulation to create certainty as to the law applicable. By organising flights from and to different airports, Easy-Jet builds certain activities there and can reasonably expect it will have to comply with the laws of those countries.