Page - 24 - in Austrian Law Journal, Volume 1/2015

ALJ 1/2015 Thomas Thiede / Judith Schacherreiter 24 directs his or her commercial activity to that State and the contract falls within the scope of the activity (Article 17.1 (c) in connection with Article 18 Brussels I Regulation). Such specific rules also exist in the provisions on the applicable law for consumer contracts laid down in Article 6 Rome I Regulation. According to recitals 7 and 24 of that regulation, they must be understood as con- sistent with Article 17 Brussels I Regulation. In light of the continuing growth in online commerce and the ubiquitous web presence of entre- preneurs, the debate has centred on the phrase ‘directed […] to’ the State where the consumer is domiciled in relation to their commercial or professional activity.4 The question arose whether an online presence was sufficient to satisfy this criterion and establish the competence of the courts in the State where the consumer was domiciled. As is well known, the CJEU handed down a landmark decision on this issue in the joined cases C-585/08 and C-144/09, Pammer/Reederei Schlüter and Alpenhof/Heller,5 referred by the Austrian Supreme Court (Oberster Gerichtshof, OGH) for preliminary rulings.6 The court did not formulate any abstract definition of the legal phrase ‘directed to’, but instead provided a list of indicia it considered suitable to determine how the activity in question is ‘directed’. It remains to be seen whether the CJEU did itself any favours by proceeding in this way – we must expect that there will be ever more applications for prelimi- nary rulings looking for resolutions in individual cases. This aspect will not, however, be exam- ined in any more detail here.7 Nonetheless, it is striking that, while the CJEU went into depth on indicia for how the entrepreneur ‘directed’ the activity in question, it did not pay any attention to the subsequent event – the con- sumer’s conclusion of the contract.8 In contrast with this, Germanic supreme courts9 have always required that the consumer show this internal link as a restrictive criterion; the activity (directed to the consumer’s State) must have been the cause of the actual conclusion of the contract. It may be assumed that the causal link between the marketing activity and the conclusion of the contract is only very rarely at issue in practice. The consumer, who bears the burden of proof in cases brought outside of the defendant’s domicile (Article 4 Brussels I Regulation), will usually submit that he took notice, first, of the entrepreneur’s marketing activity directed at his State (typically the entrepreneur’s online presence) and, second, of the entrepreneur himself. He will claim that in consequence he concluded the contract because of the marketing activity. This is not the position adopted in Luxembourg, however, as C-218/12 Emrek/Sabranovic10 illustrates. 4 See e.g. Øren, International Jurisdiction over Consumer Contracts in e-Europe, ICLQ 2003, 665 (665 et seq). 5 CJEU 7. 12. 2010, C-585/08, C-144/09, Pammer/Reederei Schlüter und Alpenhof/Heller. 6 OGH 6 Ob 192/08s ecolex 2009/114; OGH 6 Ob 24/09m ecolex 2009/300. 7 This is not a tenable objection to a flexible system in the present authors’ opinion, cf Thiede, A Topless Duchess and Caricatures of the Prophet Mohammed. A Flexible Conflict of Laws Rule for Crossborder Infringements of Privacy and Reputation, in Bonomi/Romano (eds), Yearbook of Private International Law 2012/2013 (2013) 247 (247 et seqq); Symeonides, Codification and Flexibility in Private International Law, in Brown/Snyder (eds), General Reports of the XVIIIth Congress of the International Academy of Comparative Law (2011) 167 (167 et seq); with a different view Aubry/Poillot/Sauphanor-Brouillaud, Panorama de droit de la consummation 2013, Recueil Dalloz 2013, 945 (974); d’Avout, JCP G 2011, 226; Mankowski, Autoritatives zum „Ausrichten“ unternehmerischer Tätigkeit unter Art. 15 Abs. 1 lit. c EuGVVO, IPRax 2012, 144. 8 In the Pammer/Reederei Schlüter and Alpenhof/Heller case this was perhaps understandable because there was an undeniable causal link between the direction of the activity and the conclusion of the contract. 9 See OGH 2 Ob 256/08y EvBl 2009/136 (Clavora); BGH III ZR 71/08 CR 2009, 174 = EuZW 2009, 26 (Leible/Müller) = IPRax 2009, 258 (Mankowski 238) = NJW 2009, 298; OLG Köln 12 U 49/09 NZM 2010, 495; OLG Karlsruhe IPRax 2008, 348 = NJW 2008, 45 = AnwBl 2008, 380; OLG Schleswig WM 1997, 991 = RIW 1997, 955; OLG Karlsruhe 14 U 72/06 IPRax 2008, 348 (Mankowski 333) = IPRspr 2007/145 = NJW 2008, 85. 10 CJEU 17. 10. 2013, C-218/12, Lokman Emrek/Vlado Sabranovic (not published).