Page - 26 - in Austrian Law Journal, Volume 1/2015

ALJ 1/2015 Thomas Thiede / Judith Schacherreiter 26 Nonetheless, a glance at the second part of the rule, which stipulates that the contract must fall within the business area of the activity directed at the consumer’s State, is enough to cause legit- imate doubts as to whether an internal link between the direction of the activity and the conclu- sion of the contract is unnecessary. It is difficult to conceive of scenarios in which the business area requirement retains an independent scope without there being a causal link between the marketing activity and the conclusion of the contract.12 The entrepreneur would have to have directed the marketing activity in his or her business area in the relevant sense, without the pur- chase contract in this business area coming about through that marketing activity. As the interac- tion of the two requirements cannot just serve to exclude the jurisdiction of the consumer’s dom- icile in the hypothetical case of inventory being sold, a requirement of a link to the conclusion of the contract seems to be implied.13 This interpretation also accords with the content of materials which authorise conclusions to be drawn on the concepts, values and aims underlying the rule; the ongoing criticism of Article 17.1 (c) Brussels I Regulation occasioned the Commission and the Council to make a joint declaration in 2000 concerning Article 17.1 (c) Brussels I Regulation.14 This declaration emphasises that, in re- spect of the application of Article 17.1 (c) Brussels I Regulation, ‘it is not sufficient for an undertak- ing to target its activities at the Member State of the consumer's residence […] a contract must also be concluded within the framework [sic!] of its activities.’ It is questionable whether such a dec- laration can be relied on in itself, given its uncertain legal status and lack of normative authority. However, the declaration is not completely isolated from other, closely connected legislation, namely the Rome I Regulation.15 As mentioned above, Article 17.1 (c) Brussels I Regulation was adopted to determine the applicable law for consumer contracts in Article 6.1 Rome I Regulation. The joint declaration concerning Article 17.1 (c) Brussels Regulation is cited in detail in the Rome I Regulation, especially in respect of the need for the entrepreneur’s marketing activity to cause the contract to be concluded. This requirement is also added in Recital 25 Rome I Regulation.16 According to that provision: 12 Cf Nielsen in Magnus/Mankowski (eds), Brussels I Regulation (2007) Art 15 No 37. 13 Cf F. Bydlinski, Methodenlehre2 (1991) 444: „Führte eine bestimmte Interpretation […] dazu, dass (die) Bestim- mung […] zweck- und funktionslos wird, so ist diese Auslegung nicht anzunehmen.“ (‘If a certain interpretation would lead […] to the provision […] becoming purposeless and losing its function, then this interpretation should not be taken,’ translation provided by the authors). 14 Joint declaration of the Council and the Commission on Articles 15 and 73 of Regulation No 44/2001, Annex II to the note of the General Secretariat of the Council of the European Union for the Permanent Representatives’ committee of 14. 12. 2000 in the corrected version of 20. 12. 2000, 14139/00 and 14139/00 COR2 (en)-JUSTCIV 137. 15 Regulation (EC) No 593/2008, OJ L 2008/177, 6 et seqq. 16 The background to Recital 25 Rome I Regulation is the so-called ‘El Corte Inglés’ case: ‘El Corte Inglés’ is a de- partment store chain with a flagship store in Madrid and, inter alia, a branch in Lisbon. A Portuguese citizen, liv- ing in Portugal, came to Madrid and went shopping there in the local ‘El Corte Inglès’. Since the overall enterprise El Corte Inglès also directs its commercial activity at Portugal, given the fact that a branch is located there, the application of Portuguese law was a possibility. In the course of the negotiations regarding Rome I Regulation, however, the Spanish delegation ultimately managed to exclude this possibility. Cf Mankowski, Muss zwischen ausgerichteter Tätigkeit und konkretem Vertrag bei Art. 15 Abs. 1 lit. C EuGVVO ein Zusammenhang bestehen? IPRax 2008, 333 (337).