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ECJ: Consumer may sue foreign party and its domestic contract partner in one action
The Court of Justice recently ruled on a question referred by an Austrian court about the Brussels I regulation. Brussels I confers jurisdiction on the courts for the place where the consumer is domiciled. The ECJ interpretation of Brussels I was that if the other party to a contract – a travel agent located abroad – has used an intermediary – a travel operator located in the home country – the consumer may bring joint proceedings against both parties in his home country. The general aims of Brussels I would be undermined if the consumer were to be obliged to pursue parallel proceedings in two different courts.
In Maletic v lastminute.com GmbH v TUI Österreich GmbH, an Austrian consumer had booked a package holiday to Egypt on the website of a travel agent registered in Germany. The website stated that this party solely operated as a travel agent and that the journey would be carried out by a tour operator with its registered office in Vienna, Austria.
The consumer lodged a claim before an Austrian court against both the travel agent and the tour operator. Pursuant to Article 16(1) Regulation 44/2001 (Brussels I), a consumer may bring proceedings against "the other party" to a contract either in the courts of the member state in which that party is domiciled or in the courts of the place where the consumer is domiciled. The question then arose whether in the relationship between the consumer and the tour operator jurisdiction would be governed by Brussels I or by national Austrian law.
The ECJ's decision
Before clarifying the concept of "the other party to a contract" the ECJ reminded the parties that Brussels I is only applicable to legal relationships having an international character. The international character is not derived solely from the place of residence of the parties, but can follow equally from the other circumstances of the case.
According to the ECJ, even if a single transaction, such as the online booking and payment for a package holiday, could be divided into two separate contractual relationships, i.e., one with the travel agent and one with the tour operator, the second contractual relationship cannot be classified as internal to Austria since it was inseparably linked to the first contractual relationship which was made through the website of a German company. The general aims of Brussels I would be undermined if the consumer were to be obliged to pursue parallel proceedings in two different courts, by way of connected actions against the undertakings involved in the booking and the arrangements for the package holiday. The issue thus fell within the scope of Brussels I. Since the contract at stake was concluded between a professional and a consumer, Article 16 (1) Brussels I was applicable. Accordingly, the ECJ interprets the concept of "the other party to a contract" under that Article as including the contracting partner of the operator with whom the consumer concluded the contract and being domiciled in the same member state as the consumer himself.
This decision points out that commercial parties should be aware that if they use the services of an intermediary, the intermediary's place of registration may be taken into account when deciding on the international character of contracts concluded with consumers via that intermediary.
Daan Beenders
daan.beenders@debrauw.com
Dennis Horeman
dennis.horeman@debrauw.com
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