JUDGMENT OF THE COURT (Grand Chamber)
7 July 2011
(Jurisdiction in civil and commercial matters – Regulation (EC) No 44/2001 – Article 15(1)(c) and (3) – Jurisdiction over consumer contracts – Contract for a voyage by freighter – Concept of ‘package travel’ – Presentation of the voyage on a website – Concept of activity ‘directed to’ the Member State of the consumer’s domicile – Criteria – Accessibility of the website)
REFERENCES for a preliminary ruling under Articles 68 and 234 EC from the Oberster Gerichtshof (Austria), made by decisions of 6 November 2010 and 26 March 2011.
Ox Schiffahrt Zrt
18 Ox Schiffahrt Zrt contended that it did not pursue any professional or commercial activity in Austria and raised the plea that the court lacked jurisdiction.
19 That plea was dismissed at first instance by judgment of the Bezirksgericht Krems an der Donau of 6 November 2010, the court holding that it had jurisdiction on the ground that the voyage contract was a consumer contract, namely a contract for package travel, and that the intermediary company had engaged in advertising activity in Austria on behalf of Ox Schiffahrt Zrt by means of the Internet.
20 The appellate court, the Landesgericht (Regional Court) Krems an der Donau, on the other hand, declared by judgment of 26 March 2011 that the Austrian courts lacked jurisdiction, holding that the voyage contract constituted a contract of transport not covered by Section 4 of Chapter II of Regulation No 44/2001. The fact that the proposed voyage, namely a lengthy crossing from Europe to the Far East, involved a degree of comfort did not transform the voyage contract into a consumer contract.
21 Mr Sniegon appealed on a point of law against that judgment.
22 The Oberster Gerichtshof (Supreme Court) harbours doubts regarding the criteria applicable to the concept of ‘package travel’ and observes that in this instance the question arises as to whether the services offered are comparable to a cruise, which would justify the conclusion that there is a ‘package’ and, accordingly, a contract of transport covered by Section 4 of Chapter II of Regulation No 44/2001.
23 According to the Oberster Gerichtshof, if such a contract were involved, Article 15(1)(c) of Regulation No 44/2001 could be applicable and it would then be helpful to know what criteria must be met by a website in order for the activities engaged in by the trader to be capable of being regarded as ‘directed to’ the Member State of the consumer within the meaning of that provision. The Oberster Gerichtshof points out, however, that in the case in point, the first instance court and the appellate court have not made specific findings as to the way in which the voyage contract was concluded, the role played by the website or the links between Ox Schiffahrt Zrt and the intermediary company.
24 It is in those circumstances that the Oberster Gerichtshof decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling: ‘1. Does a “voyage by freighter” constitute package travel for the purposes of Article 15(3) of [Regulation No 44/2001]? 2. If the answer to Question 1 is in the affirmative: is the fact that an intermediary’s website can be consulted on the internet sufficient to justify a finding that activities are being “directed” [to the Member State of the consumer’s domicile] within the meaning of Article 15(1)(c) of Regulation No 44/2001?’