Page - 132 - in Austrian Law Journal, Volume 2/2016

ALJ 2/2016 The Brussels I Regulation Recast 132 that not many defendants would actually engage in research on the jurisdictional regime. This would especially be the case if “information” were given in written form and in a formulaic (“copy- paste”) manner (particularly nowadays, when documents served by the court are already accom- panied by such an amount of instructions and information that many parties no longer even read all of them carefully). If, however, the court must, in such cases, positively advise the defendant that the claim (at least) appears to have been brought in a court lacking jurisdiction and provide the information about the consequences of entering an appearance, most defendants would probably raise a plea of lack of jurisdiction. The second option is clearly more weaker-party friendly, but it seems incom- patible with the restrictive wording of the discussed provision. In addition, it is not always possi- ble for the court to assess at an early stage of proceedings whether the case indeed concerns a consumer dispute (i.e. whether the defendant was not acting in a professional capacity). Concerning the question of who needs to inform the defendant (the court or the claimant), it seems logical that this should be the task of the court, probably in written form, when serving the claim on the defendant. Nevertheless, in countries where it is the claimant's duty to serve the claim upon the defendant even before filing it with the court, it is conceivable that proper infor- mation should be provided already by the claimant in the statement of the claim. Information should in any case be given as soon as possible. If the court cannot ascertain whether the case concerns a consumer dispute (or if it neglects its obligation to provide proper information), the omission can still be remedied at a later stage. In such case the court – if the defendant objects the lack of jurisdiction after having received such information – must accept it as timely and con- sider it as admissible even if the defendant has already pleaded his defence on the merits. Art. 26(2) of the Brussels I Recast makes it sufficiently clear that a tacit jurisdiction agreement cannot be concluded before proper information has been given to the defendant. This rule should pre- vail over any applicable rules of national law determining that pleas of lack of jurisdiction should be raised in limine litis. Finally, the question arises about the consequences of the court’s failure to ensure that the de- fendant, as the weaker party, has received adequate information. In general, a violation of this protective jurisdictional regime precludes recognition of the judgment in other Member States. The problem is that while Art. 45(1) of the Brussels I Recast (which enumerates the cases in which violations of jurisdictional rules constitute grounds for denial of recognition and enforcement) refers to Sections 2, 3, and 4 of Chapter II, it does not explicitly include a breach of Art. 26(2), which lies in section 7.51 The purpose and the context of the rule would imply that a violation of the obligation to provide adequate information to the weaker party could result in the sanction of non-recognition of the judgment delivered by the court where the weaker party entered an appearance without contesting jurisdiction (given that this court in fact lacked jurisdiction). The wording of the Regulation does not preclude such an interpretation. It should be noted that in the Bilas case the CJEU already held that a submission by entering an appearance (tacit juris- diction agreement) is an available basis for jurisdiction in disputes involving weaker parties not- 51 In the relevant parts, Art. 45(1) reads as follows: “On the application of any interested party, the recognition of a judgment shall be refused: […] if the judgment conflicts with: (i) Sections 3, 4 or 5 of Chapter II where the policy- holder, the insured, a beneficiary of the insurance contract, the injured party, the consumer or the employee was the defendant […]”