Page - 23 - in Austrian Law Journal, Volume 1/2015

ISSN: 2409-6911 (CC-BY) 3.0 license www.austrian-law-journal.at Fundstelle: Thiede/Schacherreiter, The Recent Shift from the Passive to the Active Consumer, ALJ 1/2015, 23–31 (http://alj.uni-graz.at/index.php/alj/article/view/34). The Recent Shift from the Passive to the Active Consumer On the causal link between ‘directing activities (at the consumer’s State)’ and the consumer’s conclusion of the contract with respect to Article 17.1 (c) Brussels I Regulation Thomas Thiede*, University of Graz Judith Schacherreiter**, University of Vienna Abstract: The debate on the protection of consumers in cross-border settings has flared up re- peatedly since the introduction of the consumer protection rules of the Brussels I and Rome I Regu- lations. Whilst in the past consumer protection had not often been prioritised and the CJEU had in- sisted on strict interpretations to the consumers’ detriment,1 and though since then a middle road between the interests of the entrepreneur and the consumer has been sought,2 it seems that the pendulum has now swung back the other way again. According to the CJEU’s latest judgment in C-218/12 Emrek/Sabranovic, in all cases where an entrepreneur concludes a contract with a for- eign consumer, this falls under the adjudicatory jurisdiction of the consumer’s domicile, even if the entrepreneur’s marketing activity in the consumer’s state was not causally relevant for the eventu- al conclusion of the contract. Keywords: Conflict of Laws; International Procedure; Adjudicary Jurisdiction; Consumer Law; Cross-border Consumer Contracts. I. Introduction When it comes to consumer claims against entrepreneurs, international jurisdiction is determined in the European context by the Brussels I Regulation.3 This Regulation provides for an adjudicatory jurisdiction, supplementing the general jurisdiction of the defendant entrepreneur’s habitual domi- cile (Article 4 Brussels I Regulation). As well as the State where the obligation in question was to be performed – which usually coincides with the defendant’s domicile (Article 7.1 (a) Brussels I Regula- tion) – the State where the consumer is domiciled also has jurisdiction insofar as the entrepreneur * Dr. iur., Dipl.-Jur., LL.B., LL.M., Institute for European Tort Law, Austrian Academy of Sciences and University of Graz; Centre for European Private Law, University of Graz. ** PD Dr. iur., Department of European, International and Comparative Law, University of Vienna. The authors wish to express their sincere thanks to Andrew Bell, University of Birmingham, UK, for providing his excellent linguistic expertise as well as to an anonymous reviewer for revealing crucial issues to be addressed. 1 For instance, CJEU 20. 1. 2005, C-464/01, Johann Gruber/BayWa AG. 2 For instance, CJEU 7. 12. 2010, C-585/08, C-144/09, Pammer/Reederei Schlüter and Alpenhof/Heller; cf Gillies, Clari- fying the ‘Philosophy of Article 15’ in the Brussels I Regulation: C-585/08 Peter Pammer v Reedere Karl Schluter GmbH & Co and C-144/09 Hotel Alpenhof GesmbH & Co KG v Oliver Heller, ICLQ 2011, 557 (557 et seq). 3 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdic- tion and the recognition of judgments in civil and commercial matters, OJ 2012 L 351/1.