Case number and/or case name
Joined cases C-585/08 Peter Pammer v Reederei Karl Schlüter GmbH & Co. KG and C-144/09 Hotel Alpenhof GesmbH v Oliver Heller (Grand Chamber) [2010] ECR I-12527
Referring court and Member State
Austria, Third Instance, Oberster Gerichtshof
Summary
This joint case was referred to the CJEU in two disputes, between, (i) Pammer (residing in Austria) and Karl Schlüter (established in Germany) concerning reimbursement of the cost of a freighter voyage booked through a German intermediary and (ii) Hotel Alpenhof (operating in Austria) and Heller (residing in Germany) concerning his refusal to pay his hotel bill for a stay booked by using an email address obtained on the internet. In C-585/08 Pammer brought an action in Austria. Karl Schlüter contended that Austria had no jurisdiction as it had not pursued any professional or commercial activity there. The court held that it had jurisdiction because the contract was a consumer contract and the intermediary company had engaged in advertising activity in Austria on behalf of Karl Schlüter via the internet. The appellate court found that the Austrian courts lacked jurisdiction, holding that the contract was a transport contract. In C-144/09, Hotel Alpenhof brought an action in Austria. Heller raised the plea of lack of jurisdiction submitting that as a consumer he can be sued only in Germany under Art 15(1)(c). The court dismissed the action and the decision was upheld. Both cases came before the referring court. On the question whether the contract in C 585/08 is a transport contract in Art 15(3), considering that the legislature intended to cover the same types of contracts in Art 15(3) of Brussels I and Art 6(4)(b) of Rome I, the CJEU interpreted the former in the light of the latter which refers to ‘package travel’. It found that the service offered by the voyage fulfils the necessary conditions for a ‘package’ in Art 2(1) of Directive 90/314. It held that the contract concerning a voyage by freighter providing for a combination of travel and accommodation for an inclusive price is a transport contract. On the question concerning criteria under which a trader whose activity is presented on its website or on that of an intermediary can be considered to be ‘directing’ its activity to the consumer’s domicile under Art 15(1)(c) and whether the fact that those sites can be consulted on the internet is sufficient for that activity to be regarded as such, the CJEU ruled that: “…it should be ascertained whether, before the conclusion of any contract with the consumer, it is apparent from those websites and the trader’s overall activity that the trader was envisaging doing business with consumers domiciled in one or more MSs, including the MS of that consumer’s domicile, in the sense that it was minded to conclude a contract with them. The following matters, the list of which is not exhaustive, are capable of constituting evidence from which it may be concluded that the trader’s activity is directed to the MS of the consumer’s domicile, namely the international nature of the activity, mention of itineraries from other MSs for going to the place where the trader is established, use of a language or a currency other than the language or currency generally used in the MS in which the trader is established with the possibility of making and confirming the reservation in that other language, mention of telephone numbers with an international code, outlay of expenditure on an internet referencing service in order to facilitate access to the trader’s site or that of its intermediary by consumers domiciled in other MSs, use of a top-level domain name other than that of the MS in which the trader is established, and mention of an international clientele composed of customers domiciled in various MSs. It is for the national courts to ascertain whether such evidence exists. On the other hand, the mere accessibility of the trader’s or the intermediary’s website in the MS in which the consumer is domiciled is insufficient. The same is true of mention of an email address and of other contact details, or of use of a language or a currency which are the language and/or currency generally used in the MS in which the trader is established.”