Seite - 30 - in Austrian Law Journal, Band 1/2015

ALJ 1/2015 Thomas Thiede / Judith Schacherreiter 30 or her own jurisdiction in order to motivate him or her to enter the internal market, the behav- ioural approach does not necessarily require a causal link between the entrepreneur’s activities and the conclusion of the contract. The directed activity requirement does not function as a lure, but only as a guarantee of foreseeability for the entrepreneur. If the entrepreneur directs com- mercial activities to a certain country in order to acquire clients then it can be assumed that the jurisdiction and the law of that country do not come to him as a surprise.35 This approach can already be seen when reading between the lines in the aforementioned deci- sions Pammer/Reederei Schlüter and Alpenhof/Heller,36 as well as in Mühlleitner/Yusufi and Yusufi,37 where the CJEU argued that the European Union legislature had removed the condition requiring the consumer to have taken the steps necessary for the conclusion of the contract in his state, replacing it with “conditions applicable to the trader alone”.38 It is sufficient if the trader pursues his or her commercial activities in the consumer’s domicile, or by any means directs such activi- ties to that Member State, and thus manifests his intention to establish commercial relations with the consumers who have their domicile there.39 The Advocate General in Emrek/Sabranovic explicitly refers to this argument, confirms that the only conduct relevant to the special jurisdiction issue is the conduct of the entrepreneur, and denies that a causal link is required.40 Whether the directed activities and the concluded contract are connected is irrelevant because the entrepreneur will hardly be aware of it. Whether the special jurisdiction was foreseeable to him or her therefore has no influence on the criterion. This means that the special jurisdiction applies to all consumers, passive and active, whenever a foreign jurisdiction would not come as a surprise to the entrepreneur. 41 VI. Conclusion From a doctrinal perspective, the above arguments clearly indicate that a causal link is a re- quirement. It is somewhat surprising that none of the arguments raised received any mention in the Emrek/Sabranovic decision; the CJEU takes as its sole motivation the potential evidential diffi- culties a consumer might face42. However, the CJEU cannot act to alleviate such difficulties for the consumer, since it does not have the relevant competence for the question of whether a non liquet can be held against the consumer. To be sure, this should be left to the European legislator to provide for the needs of the European consumers as it was done for victims of road traffic accidents in course of the Fifth Motor Insurance Directive.43 35 Mankowski, IPRax 2008, 334. 36 CJEU 7. 12. 2010, C-585/08, C-144/09, Pammer/Reederei Schlüter und Alpenhof/Heller. 37 CJEU 7. 9. 2012, C-190/11, Mühlleitner/Ahmad Yusufi and Wadat Yusufi. 38 CJEU 7. 12. 2010, C-585/08, C-144/09, Pammer/Reederei Schlüter und Alpenhof/Heller No 60; CJEU 7. 9. 2012, C-190/11, Mühlleitner/Ahmad Yusufi and Wadat Yusufi No 39. 39 CJEU 7. 12. 2010, C-585/08, C-144/09, Pammer/Reederei Schlüter und Alpenhof/Heller No 60; CJEU 7. 9. 2012, C-190/11, Mühlleitner/Ahmad Yusufi and Wadat Yusufi. 40 Advocate General 18. 7. 2013, C-218/12, Emrek/Sabranovic No 17. 41 Cf Advocate General 18. 7. 2013, C-218/12, Emrek/Sabranovic No 20 und 38; Advocate General 18. 5. 2010, C-588/08 and C-144/09, Pammer/Reederei Schlüter und Alpenhof/Heller No 64. 42 CJEU 17. 10. 2013, C-218/12, Lokman Emrek/Vlado Sabranovic (not published) No 25. 43 By, for instance, taking prima facie evidence as the standard, since contracts are not coincidentally concluded, and in some circumstances the unsubstantiated contesting of a causal link may not be sufficient to necessitate full proof by the consumer.