Page - 27 - in Austrian Law Journal, Volume 1/2015

ALJ 1/2015 The Recent Shift from the Passive to the Active Consumer 27 ‘[…] consumers should be protected by such rules of the country of their habitual residence […] provided that the consumer contract has been concluded as a result of the professional pursuing his commercial or professional activities in that particular country. The same protection should be guaranteed if the professional, while not pursuing his commercial or professional activities in the country where the consumer has his habitual residence, directs his activities by any means to that country or to several countries, including that country, and the contract is concluded as a result of such activities.’ Thus the Rome I Regulation establishes that the specific contract at issue must be the result of the targeted activity. Finally, it must be established whether Recital 24 Rome I Regulation (with the quotation from the joint declaration) and Recital 25 Rome I Regulation (requirement of a causal link) must be consid- ered when interpreting the Brussels I Regulation. Recital 7 Rome I Regulation provides support for this idea, since it stipulates that the Rome I Regulation must be interpreted consistently with the Brussels I Regulation, and thus requires that the two Regulations be applied harmoniously. Since Recital 7 Rome I Regulation is intended to tie the more recent Regulation to the older one (i.e., it aims to produce coherence), it seems to be satisfied; no divergence of aims between the Brussels I and Rome I Regulations is identifiable in this area. The interpretation of Article 17.1 (c) Brussels I Regulation already mentioned at the beginning points in the same direction as Recital 25 Rome I Regulation. The only remaining question in respect of the transferability of a Recital from one piece of legislation – and a more recent one at that – to the interpretation of an older regula- tion was answered by the CJEU in C-463/06 FBTO Schadeverzoekeringen/Oderbreit17 apropos the Brussels I Regulation. Specifically, the issue was whether Article 13 Brussels I Regulation should be construed in light of Recital 16a of the Fourth Motor Insurance Directive of 2000, which was only introduced in 2005 by Article 5 Fifth Motor Insurance Directive. The CJEU did not hesitate in that case to assume (incorrectly on the particular facts, in the opinion of the authors of this text)18 that this was a correct and authentic reproduction of the historical legislative ambit. In consequence, we can note the following. Both the interpretation which preserves an inde- pendent scope for the requirement that the contract be within the business area of the targeted activity and the joint declaration of the Commission and the Council in this respect – which is unambiguous and is quoted in Recital 24 Rome I Regulation and also Recital 25 of the Rome I Regulation (the latter two being relevant on the basis of Recital 7 Rome I Regulation and the FBTO Schadeverzekeringen case) – strongly support imposing a requirement of a causal link between the directed activity and the consumer’s conclusion of the contract. V. Legal politics Traditionally, European consumer protection in international procedural and private law has been directed towards the passive consumer. ‘Passive’ in this context means that the consumer is not the initiator of the international contract. The passive consumer principally limits his or her demand for goods to his or her home country, and is one who has no intention to enter the in- 17 CJEU 13. 12. 2007, C-463/06, FBTO Schadeverzekeringen/Odenbreit. 18 Likewise Fuchs, Gerichtsstand für die Direktklage am Wohnsitz des Verkehrsunfallopfers? IPRax 2007, 302; Heiss, Die Direktklage vor dem EuGH: 6 Antithesen zu BGH 29. 9. 2006 (VI ZR 200/05), VersR 2007, 327; Thiede/Lud- wichowska, EuGH, 13. 12. 2007, C 463/06, FBTO Schadeverzekeringen NV v Jack Odenbreit, VersR 2008, 631; Witt- wer, Direktklage im Inland gegen ausländische Kfz-Haftpflichtversicherung, ZVR 2006, 404 (406).