Page - 31 - in Austrian Law Journal, Volume 1/2015

ALJ 1/2015 The Recent Shift from the Passive to the Active Consumer 31 With regard to the traditional purpose behind special jurisdiction for consumer contracts (the protection of the consumer who has been induced by the entrepreneur to enter into the con- tract), the CJEU’s position is untenable; a consumer who concludes a contract abroad for reasons other than the entrepreneur’s directed activity is simply not covered by the rule. In the absence of such coverage, he or she is not entitled to the jurisdiction of his or her home courts. The CJEU reveals a single-minded focus on European consumers neglecting tenable interests of entrepreneurs, notably those of SMEs (small and medium-sized enterprises): not all entrepre- neurs have sophisticated means to defend themselves in fori all over Europe. Must now even smallest Bed & Breakfast abstain from accommodating foreign guests just because it provides a website in a foreign language (which, we may add, had no influence on choosing this B&B in the first place)? Without more, the Emrek/Sabranovic decision reflects a shift in consumer policy, which replaces the traditional stance of protecting the passive consumer with the aim of creating an active con- sumer. In this context, the special jurisdiction functions as an incentive to encourage the consumer to enter contracts with entrepreneurs in other Member States and, simultaneously, strengthens the internal market. Thus, the consumer who (whether physically or virtually through the inter- net) travels to another Member State and enters into a contract will be granted the right to pro- ceed in his home jurisdiction whenever the special jurisdiction is foreseeable for the entrepreneur. In accordance with this policy, consumer law does not primarily aim to balance the interests of the consumer against those of the entrepreneur with regard to unequal bargaining power and social justice, but rather to provide incentives to encourage certain consumer conduct with the intention of strengthening the internal market. Whether this approach favours consumers or entrepreneurs in the long-term, and whether it actually strengthens the internal market, remains to be seen.