Page - 122 - in Austrian Law Journal, Volume 2/2016

ISSN: 2409-6911 (CC-BY) 3.0 license www.austrian-law-journal.at Fundstelle: Galič, Jurisdiction over Consumer, Employment, and Insurance Contracts under the Brussels I Regulation Recast, ALJ 2/2016, 122–134 (http://alj.uni-graz.at/index.php/alj/article/view/67). Jurisdiction over Consumer, Employment, and Insurance Contracts under the Brussels I Regulation Recast Enhancing the Protection of the Weaker Party Aleš Galič*, University of Ljubljana Abstract: This article aims to present and critically assess the changes which the Recast Brussels I Regulation brought to the protective regime for the weaker parties. Although these changes are not as far-reaching as in other fields, they are nevertheless important. The most significant changes concern the limited extension of the scope of applicability against defend- ants from third states and jurisdiction based on the entering of an appearance. Although these changes improve the procedural protection of the weaker parties in principle, some new dilem- mas arise, which are liable to jeopardize certainty and predictability of the jurisdictional regime. Keywords: Brussels I Regulation; international jurisdiction; weaker parties; jurisdiction agree- ment; recognition and enforcement. I. Introduction Parties that are regarded as weaker from the socio-economic point of view in a contractual rela- tionship must be offered adequate protection not only in substantive but also in procedural law.1 The latter also extends, although not exclusively, to the requirement that such parties should be protected by the rules of jurisdiction more favourable to their interests than the general rules. The Brussels I Regulation contains three special sections establishing a protective jurisdictional regime: for policyholders and other beneficiaries under insurance contracts (Section 3), for indi- vidual contracts of employment (Section 5 of Chapter II), and for (certain categories of2) consum- er contracts (Section 4). The system of protection introduced in these sections of the Brussels I Regulation is based on the idea that these parties are in a weaker position vis-à-vis the other party to the contract (insurers, employers, or traders), regarding their bargaining power, the cost * Dr. Aleš Galič is Full Professor of Civil Procedure and International Private Law at the University of Ljubljana, Slovenia. 1 Cf. Vesna Lazić, Procedural Justice for “Weaker Parties” in Cross-Border Litigation under the EU Regulatory Scheme, UTRECHT LAW REVIEW, Nov. 2014, 100; Giuliano and Lagarde Report on the Convention on the law applicable to con- tractual obligations, OJ C 282, 31. 10. 1980, 1. 2 Pursuant to Art. 15 of the Brussels I Regulation (now Art. 17 of the Brussels I Recast), procedural protection for consumers only applies if “(a) it is a contract for the sale of goods on instalment credit terms; or (b) it is a contract for a loan repayable by instalments, or for any other form of credit made to finance the sale of goods; or (c) in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer’s domicile or, by any means, directs such activities to that Member State […]”