Seite - 25 - in Austrian Law Journal, Band 1/2015

ALJ 1/2015 The Recent Shift from the Passive to the Active Consumer 25 There it was clear that the contact between the defendant entrepreneur and the claimant consum- er could not be traced back to the entrepreneur’s website. The CJEU decided that Article 17 Brus- sels I Regulation did not require a causal link between the means employed to direct the activity at the consumer’s state (such as a website) and the conclusion of the contract with that consumer. In the following sections, the facts of the case (II) and the arguments of the CJEU (III) will be sum- marised, and the decision discussed with regard to its doctrinal justification (IV) and its underly- ing policy (V). It will be argued that, from a doctrinal perspective, the arguments raised by the CJEU are highly questionable and methodologically weak. Similarly, from a consumer protection perspective they reflect a trend of developments based on the use of law as a means to encour- age certain consumer conduct, rather than as a means to balance unequal bargaining power. II. Facts The dispute in Emrek/Sabranovic arose from the following facts. A German consumer bought a car in France. It was possible to prove that the communication between the entrepreneur and the consumer was not linked to the entrepreneur’s website, but instead to a recommendation given by an acquaintance of the claimant. The claimant only discovered the defendant’s website after the contract was concluded, but he then tried to rely on it in order to establish that his domicile state had jurisdiction under Article 17.1 (c) Brussels I Regulation. Given the design of the website, there was no doubt that it was directed at foreign clients in the sense of the relevant rule. As the website had in no way provided the motive for the consumer to conclude the contract, however, and given that the consumer had travelled abroad on his own initiative and only learned of the website after the contract was concluded, there was, strictly speaking, no link between that as- pect of the entrepreneur’s activity and the actual contract. The crux of the matter was, therefore, whether a restrictive causality requirement applied, or else whether the mere co-existence of two elements (with no causal link) was sufficient to engage the jurisdiction of the consumer’s domicile State in accordance with Article 17.1 (c) Brussels I Regulation. III. CJEU’s decision To cut the story short, the CJEU rejected a causation requirement. Since the consumer, as the weaker party in contracts with professional entrepreneurs, must be protected, he or she must not be exposed to difficulties in proving his or her case. ‘Difficulties’ includes having to prove causation where it might be disputed by the professional entrepreneur. Requiring proof of causa- tion might dissuade consumers from suing in their domestic courts, ultimately weakening the protection provided by the above rules.11 IV. Legal doctrine Strictly speaking, Article 17.1 (c) Brussels I Regulation requires only that the commercial activity was directed towards the consumer’s State and that the specific contract should fall within the scope of the business area of the commercial activity directed in this way. The wording of Arti- cle 17.1 (c) Brussels I Regulation does not provide any basis for a causation requirement. 11 Op cit No 10, para 25.