Joined Cases C-585/08 and C-144/09

Peter Pammer

v

Reederei Karl Schlüter GmbH & Co. KG

and

Hotel Alpenhof GesmbH

v

Oliver Heller

(References for a preliminary ruling from the Oberster Gerichtshof)

(Jurisdiction in civil and commercial matters – Regulation (EC) No 44/2001 – Article 15(1)(c) and (3) – Jurisdiction over consumer contracts – Contract for a voyage by freighter – Concept of ‘package travel’ – Contract for a hotel stay – Presentation of the voyage and the hotel on a website – Concept of activity ‘directed to’ the Member State of the consumer’s domicile – Criteria – Accessibility of the website)

Summary of the Judgment

1.        Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation No 44/2001 – Jurisdiction over consumer contracts

(Council Regulation No 44/2001, Art. 15(3); Council Directive 90/314, Art. 2(1))

2.        Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation No 44/2001 – Jurisdiction over consumer contracts – Concept of activities directed to the Member State of the consumer’s domicile, within the meaning of Article 15(1)(c) of the regulation

(Council Regulation No 44/2001, Art. 15(1)(c))

1.        A contract concerning a voyage by freighter can be a contract of transport which, for an inclusive price, provides for a combination of travel and accommodation within the meaning of Article 15(3) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

That is the case where, apart from transport, the voyage by freighter involves, for an inclusive price, accommodation too and the voyage is for a period of more than 24 hours. Accordingly, such a service fulfils the necessary conditions for a package within the meaning of Article 2(1) of Directive 90/314 on package travel, package holidays and package tours and falls within the definition, set out in Article 15(3) of Regulation No 44/2001 read in the light of Article 2(1) of the directive, of a contract of transport at an inclusive price.

(see paras 45-46, operative part 1)

2.        In order to determine whether a trader whose activity is presented on its website or on that of an intermediary can be considered to be ‘directing’ its activity to the Member State of the consumer’s domicile, within the meaning of Article 15(1)(c) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, it should be ascertained whether, before the conclusion of any contract with the consumer, it is apparent from those websites and the trader’s overall activity that the trader was envisaging doing business with consumers domiciled in one or more Member States, including the Member State of that consumer’s domicile, in the sense that it was minded to conclude a contract with them.

The following matters, the list of which is not exhaustive, are capable of constituting evidence from which it may be concluded that the trader’s activity is directed to the Member State of the consumer’s domicile, namely the international nature of the activity, mention of itineraries from other Member States for going to the place where the trader is established, use of a language or a currency other than the language or currency generally used in the Member State in which the trader is established with the possibility of making and confirming the reservation in that other language, mention of telephone numbers with an international code, outlay of expenditure on an internet referencing service in order to facilitate access to the trader’s site or that of its intermediary by consumers domiciled in other Member States, use of a top-level domain name other than that of the Member State in which the trader is established, and mention of an international clientele composed of customers domiciled in various Member States. It is for the national courts to ascertain whether such evidence exists.

On the other hand, the mere accessibility of the trader’s or the intermediary’s website in the Member State in which the consumer is domiciled is insufficient. The same is true of mention of an email address and of other contact details, or of use of a language or a currency which are the language and/or currency generally used in the Member State in which the trader is established.

(see paras 92-94, operative part 2)