Page - 29 - in Austrian Law Journal, Volume 1/2015

ALJ 1/2015 The Recent Shift from the Passive to the Active Consumer 29 Member States, but also to establish and promote the internal market. This aim is to be realised by creating equal competition conditions for companies, and by making it easier for consumers to operate actively in other EU states without running the risk of being subject to foreign jurisdic- tion and law.30 Consumers should thus be motivated to participate (actively) in the internal mar- ket. Some authors have recently stated that, although the main, traditional goal of consumer law was the protection of the weaker party for social reasons, the aim at present is increasingly dom- inated by the desire to strengthen the internal market. Accordingly, consumer confidence in the internal market should be increased in order to encourage those consumers to take advantage of the internal market and to buy consumer goods in other Member States.31 This also extends to the question of jurisdiction. The ultimate objective in granting the consumer the right to litigate in his or her own jurisdiction is not to compensate unequal bargaining power, but rather to encourage certain socially desirable conduct: (active) participation in the internal market. Accordingly, in Emrek/Sabranovic the Advocate General32 explicitly indicated that the spe- cial jurisdiction of Article 17 Brussels I Regulation serves as an incentive for consumers to con- clude contracts in other Member States. The active consumer is thus not only an object of protec- tion but the status principally encouraged in consumer law. This policy implies the assumption that people respond to such incentives, and that the law may serve as a powerful tool to encour- age socially desirable conduct and discourage undesirable conduct. This assumption seems to be shared by parts of the so-called ‘behavioral law and economics’ movement,33 even though an empirical behavioral approach to law would imply checking the consumers’ reactions (or non- reactions) to such legal incentives in real life (in order to verify or falsify the assumption).34 The requirement of a definite link between the entrepreneur and the consumer’s home country fulfils different functions depending on whether consumer policy follows the traditional or the behavioural approach. Following the traditional approach, this link not only functions as a guaran- tee of foreseeability for the entrepreneur, but also as a ‘lure’ which induces the consumer to con- clude the contract. Following the behavioural approach, by contrast, it functions only as a means to make sure that the special jurisdiction is foreseeable by the entrepreneur. In accordance with Article 17.1 Brussels I Regulation, there is foreseeability if the entrepreneur pursues his commer- cial activities in the consumer’s country or if he directs those activities to that country. In aiming to protect the passive consumer who has been pursued and lured by the entrepreneur, the traditional approach definitely requires a causal link. The consumer must have been caught in the net of the international contract not merely accidentally, but because of the trader’s target- oriented advertising measures. On the other hand, by guaranteeing the consumer access to his 30 Lurger/Augenhofer, Österreichisches und europäisches Konsumentenschutzrecht2 (2008) 12. 31 Heiderhoff, Zum Verbraucherbegriff der EuGVVO und des LugÜ, IPRax 2005, 230 (231); Staudinger in Rauscher, Art 5 Brüssel I-VO Art 15 Brüssel I-VO No 1. 32 Advocate General 18. 7. 2013, C-218/12, Emrek/Sabranovic No 37. 33 Korobkin/Ulen, Law and Behavioral Science: Removing the Rationality Assumption from Law and Economics, California Law Review 2000, 1051 (1054); regarding the application of behavioural economics in consumer law cf Bar-Gill, The Behavioral Economics of Consumer Contracts, Minnesota Law Review 2008, 749; Rischkowsky/Döring, Consumer Policy in a Market Economy – Considerations from the Perspectives of the Economics of Information, the New Institutional Economics as well as Behavioural Economics, J Consum Policy 2008, 285; Tscherner, Can behavioral research advance information duties, boilerplate and withdrawal rights? Austrian Law Journal 2014, 144 (144 et seqq). 34 Lurger, Empiricism and Private Law: Behavioral Research as Part of a Legal-Empirical Governance Analysis and a Form of New Legal Realism, Austrian Law Journal 2014, 20 (25 et seqq).