Seite - 131 - in Austrian Law Journal, Band 2/2016

ALJ 2/2016 Aleš Galič 131 European standards in this respect can result in a different level of effectiveness of procedural consumer protection in those Member States where national law or practice provide for such a forewarning with regard to the lack of jurisdiction45 and those Member States where this is not the case.46 Although tacit prorogation of jurisdiction may sometimes occur to the undue detriment of the weaker parties who do not have proper access to legal advice, in Bilas47 the CJEU refrained from requiring a court to instruct the defendant about the consequences of his possible entering an appearance. In the CJEU’s view, such an obligation could not be imposed other than by the intro- duction of an express rule to that effect in the Brussels I Regulation.48 When drafting the recast Regulation, the Commission had due regard for these observations of the CJEU. An express rule to the effect of forewarning the consumer, employee, or insured about his right to contest the jurisdiction of the court and the consequences of entering an appearance is now indeed provided for in the new Brussels I Regulation. Pursuant to Art. 26(2) of the new Regulation, the court will need to ensure, before assuming jurisdiction on the basis of a tacit jurisdiction agreement, that information concerning the consequences of entering an appearance without contesting jurisdic- tion has been provided to the defendant. In general, the new rule is properly balanced.49 On the one hand, it rejected the radical view that jurisdiction based on entering an appearance should not apply to weaker parties at all,50 whereas on the other it acknowledged that a certain level of additional protection is needed. This new rule is, however, likely to give rise to new questions in practice. First, the new rule does not unambiguously answer the question how precise and explicit the court’s instruction to (or information for) the defendant should be. The wording of the rule sug- gests that it is sufficient for the court to reiterate, in rather abstract terms (although probably in plain language understandable to legally unrepresented parties) the relevant provision of the Regulation concerning the consequences of failure to object the lack of jurisdiction, leaving it for the consumer to (possibly) discover by himself whether the claim was indeed brought in a court lacking jurisdiction. It does not follow from the wording that the court should go one step further and positively advise the consumer that it lacks jurisdiction under the Regulation in the first place. The practical effect of this issue should not be underestimated. If an (unrepresented) consumer or employee is merely advised of the consequences of entering an appearance, leaving it for the defendant to determine whether there is a lack of jurisdiction in the first place, it can be expected 45 See, e.g., Paragraph 504 of the German ZPO (for Amtsgerichte). 46 E.g., in Slovenia the defendant must, in order to not be in default, file a written defence plea on the merits and neither is there any oral communication between the court and the defendant beforehand, nor does the court give, upon serving the claim, any written hints and observations, except the instruction to file a defence plea and the warning that a judgment on default can be rendered if the defendant fails to comply with this instruction; see Art. 277 of the Civil Procedure Act (Zakon o pravdnem postopku). 47 CJEU 20. 5. 2010, C-111/09, Česká podnikatelská pojišťovna as, Vienna Insurance Group/Michal Bilas. 48 Ibidem. However, the CJEU adds that it is always open to the court seised to ensure, having regard to the objec- tive of the rules on jurisdiction resulting from Sections 3 to 5 of Chapter II of the Brussels I Regulation, i.e. to of- fer stronger protection to the party considered to be the weaker party, that the defendant being sued before it in those circumstances is fully aware of the consequences of his agreement to enter an appearance. 49 See also Lazić, supra note 1, 109. 50 For such view, see: Peter A. Nielsen, in BRUSSELS I REGULATION Art. 17 Brussels I Regulation Rz 15 (Ulrich Magnus & Peter Mankowski eds., 2007).