Referring court and Member State
Germany, Second Instance, Landgericht Saarbrücken
Summary
This case on the interpretation of Art 15(1)(c) of Brussels I was referred to the CJEU in proceedings between Mr Emrek (domiciled in Germany) and Mr Sabranovic (operating a business selling second-hand motor vehicles in France, close to the German border) concerning claims under a warranty following the conclusion of a sale contract. Emrek, as a consumer, concluded a written contract for the sale of a second-hand motor vehicle with Sabranovic in France. Later, he brought an action in Germany against Sabranovic under the warranty. He asserted that the German courts had jurisdiction under Art 15(1)(c) of Brussels I because Sabranovic had an internet site containing the contact details for his business, including French telephone numbers with the international dialling code and a German mobile telephone number. He claimed on this basis that Sabranovic’s commercial activity was also directed to Germany although he had learnt about the business from acquaintances, not from the internet site. The court dismissed the claim and found Art 15(1)(c) inapplicable on the ground that Sabranovic had not directed his commercial activity to Germany. At appeal, the referring court considered that Sabranovic’s commercial activity was directed to Germany, particularly due to the mention of the French and German phone numbers giving the impression that he also sought to canvass clients outside France and especially in the border area in Germany. The referring court asked two questions to the CJEU on Art 15(1)(c). The CJEU firstly noted that it had already answered the second question in its previous judgment in C-190/11 Mühlleitner that Art 15(1)(c) does not require the contract between the consumer and the trader to be concluded at a distance. The first question was whether Art 15(1)(c) requires the existence of a causal link between the means used to direct the commercial/professional activity to the MS in which the consumer is domiciled, namely an Internet site, and the conclusion of the contract with that consumer. The CJEU observed that the wording of the provision does not expressly require the existence of such a causal link. It then followed the teleological interpretation and observed that the addition of the unwritten condition concerning the existence of a causal link would be contrary to the aim of the provision, ie protecting consumers as the weaker parties. By agreeing with the AG, it found that the requirement of prior consultation of the internet site by the consumer could give rise to problems of proof, in particular in cases where the contract was not concluded at a distance through that site, which would tend to dissuade consumers from bringing actions under Arts 15 and 16 of Brussels I and weaken the aim of the protection of consumers. However, the CJEU agreed with the AG also on the point that the causal link may constitute strong evidence which may be taken into consideration by the courts when determining whether the activity is in fact directed to the MS in which the consumer is domiciled. The CJEU recalled that in C-585/08 and C-144/09 Pammer and Hotel Alpenhof, it had established a non-exhaustive list of factors capable of constituting evidence which national courts may use to determine whether the essential condition of commercial activity directed to the Member State of the consumer’s domicile is fulfilled, and in C-190/11 Mühlleitner added other factors to the non-exhaustive list. It held that Art 15(1)(c) does not require the existence of a causal link between the activities directed at the consumer’s place of domicile, and the contract; but the existence of the causal link constitutes evidence of the connection between the contract and such activity. This is a very broad interpretation of Art 15 that allows a consumer to bring an action at his domicile even if he concludes a contract abroad with a trader for reasons other than the seller’s directed activity.