Page - 28 - in Austrian Law Journal, Volume 1/2015

ALJ 1/2015 Thomas Thiede / Judith Schacherreiter 28 ternational market. A foreign trader, however, pursues the consumer in his or her home country with advertising activities and induces him or her to conclude a contract. The consumer thus becomes a party to an international contract because he or she is the target of the commercial activities of a foreign trader, and not because of his or her own desire to trade internationally. The counterpart to the passive consumer is the active consumer, who takes the initiative to enter the international market, for example by travelling to a foreign country in order to conclude a contract with a foreign trader.19 The traditional focus of international consumer protection on the passive consumer was obvious in the Rome20 and Brussels Conventions.21 Article 13 Brussels Convention and Article 5 Rome Convention required that the consumer had taken all the steps necessary in his or her country on his or her part for the conclusion of the contract, and that these steps were preceded by an entre- preneur’s specific invitation or advertisement.22 The active and mobile consumer, who travels to a foreign country and then enters into the contract, was subject to these provisions only if the journey was arranged by the seller for the purpose of inducing the consumer to contract.23 In contrast, Article 6 Rome I Regulation and Article 17 Brussels I Regulation also apply to active consumers insofar as their applicability does not depend on the location where the contract was concluded.24 It is irrelevant whether the contract was concluded in the consumer’s home country, the entrepreneur’s,25 or even in a third country. If the entrepreneur pursues commercial activities in the consumer’s country, or directs such activities to that country, then the link to the consumer’s country is considered strong enough to subject the entrepreneur to its jurisdiction and its law.26 In comparison to the previous rules of the Rome Convention and the Brussels Convention, Article 6 Rome I Regulation and Article 15 Brussels I Regulation are thus considered a compromise be- tween the active and passive consumer27 and an extension of the ‘semi-passive’28 consumer. As the following analysis will show, the Emrek/Sabranovic decision pushes this extension further.29 The traditional restriction of consumer protection to passive consumers on the one hand, and the partial expansion to active consumers on the other, correspond to different goals of Europe- an consumer law. European consumer law aims not only to improve consumer protection in the 19 Cf Ragno, The Law Applicable to Consumer Contracts unter the Rome I Regulation, in Ferrari/Leible (eds), Rome I Regulation: The Law Applicable to Contractual Obligations in Europe (2009) 129 (144 et seqq). 20 Convention on the law applicable to contractual obligations of 19 June 1980; regarding its focus on passive con- sumers see Reich/Halfmeier, Electronic Commerce: Consumer Protection in the Global Village, Dick. L. Rev 2001, 112 (117 et seq): ‘The passive consumer is the beloved child of private international law who needs to be cuddled and protected, while the active consumer – whether an ocasional surfer or an Internet addict – opts out of his or her home jurisdiction by choice and, therefore, may be subjected to whatever law the supplier proposes, even offshore jurisdiction.’ 21 Convention on jurisdiction and the enforcement of judgments in civil and commercial matters of 27 September 1968. 22 Art 5.2 Rome Convention, Art 13.3 lit a and b Brussels Convention. 23 Art 5.2, second indent Rome Convention. 24 Cf Ragno in Ferrari/Leible 144 et seqq; Staudinger in Rauscher (ed), Europäisches Zivilprozess- und Kollissionsrecht: EuZPR/EuIPR (2011) Art 15 Brüssel I-VO No 11; Mankowski, IPRax 2008, 335; Schoibl, Vom Brüsseler Übereinkom- men zur Brüssel-I-Verordnung: Neuerungen im europäischen Zivilprozessrecht, JBl 2003, 149 (160 et seq). 25 See for example CJEU 6. 9. 2012, C-190/11, Mühlleitner/Yusufi and Yusufi. 26 Art 15.1 lit c Brussels I Regulation; Art 6.1 Rome I Regulation; cf Staudinger in Rauscher, Art 5 Brüssel I-VO No 11. 27 Ragno in Ferrari/Leible 145 et seq. 28 Mankowski, IPRax 2008, 338. 29 According to Rühl, Kausalität zwischen ausgerichteter Tätigkeit und Vertragsschluss: Neues zum situativen An- wendungsbereich der Art. 15 ff. EuGVVO, IPRax 2014, 41 (41, 43 et seq), this interpretation goes beyond the law and the intention of the legislator.