Provisional text
OPINION OF ADVOCATE GENERAL
EMILIOU
delivered on 7 March 2024 (1)
Case C‑774/22
JX
v
FTI Touristik GmbH
(Request for a preliminary ruling from the Amtsgericht Nürnberg (Local Court, Nuremberg, Germany))
(Reference for a preliminary ruling – Area of freedom, security and justice – Judicial cooperation in civil and commercial matters – Jurisdiction – Regulation (EU) No 1215/2012 – Scope – Proceedings that contain an international element – Concept – Jurisdiction over consumer contracts – Chapter II, Section 4 – Package travel contract between a consumer and a tour operator – Contractual parties domiciled in the same Member State – Contract concluded for the purpose of a trip to a foreign country)
I. Introduction
1. The present request for a preliminary ruling, referred by the Amtsgericht Nürnberg (Local Court, Nuremberg, Germany), concerns the interpretation of Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (2) (‘the Brussels I bis Regulation’).
2. The request has been made in the context of an action brought by a consumer domiciled in Germany against a tour operator established in the same State in relation to a contract for a package of travel services booked by that consumer for a trip abroad. The consumer suffered a setback in that regard, allegedly due to the failure of the tour operator to fulfil its legal obligations. That court wonders whether the Brussels I bis Regulation applies to such a dispute, so that the consumer can rely on the protective rules of jurisdiction laid down therein.
3. The present reference is important for two reasons. First, it will give the Court the opportunity to provide valuable clarification on the scope of the Brussels I bis Regulation and the operation of those specific rules. Second, the answer provided by the Court will be significant for travellers and businesses in the tourism sector, where such disputes frequently arise.
II. Legal framework
A. The Brussels I bis Regulation
4. Pursuant to Article 18(1) of the Brussels I bis Regulation ‘a consumer may bring proceedings against the other party to a contract either in the courts of the Member State in which that party is domiciled or, regardless of the domicile of the other party, in the courts for the place where the consumer is domiciled’.
B. German law
5. Paragraph 12 of the Zivilprozessordnung (German Code of Civil Procedure) (‘the ZPO’), entitled ‘General place of jurisdiction; concept’, provides that ‘the court at which a person has his general place of jurisdiction shall have jurisdiction for all actions brought against him, unless exclusive jurisdiction has been established for an action’.
6. Paragraph 17 of the ZPO, entitled ‘General place of jurisdiction of legal persons’, states, in its first paragraph, that ‘the general place of jurisdiction of … companies … shall be determined by their domicile. Unless otherwise specified, the place where the administration is carried out shall be deemed to be the domicile’.
III. Facts, national proceedings and the question referred for a preliminary ruling
7. JX is a private individual domiciled in Nuremberg (Germany). On 15 December 2021, he concluded a package travel contract with FTI Touristik GmbH (‘FTI’), a tour operator established in Munich (Germany), through a travel agency established in Nuremberg, for a trip abroad.
8. Subsequently, JX brought proceedings against FTI before the Amtsgericht Nürnberg (Local Court, Nuremberg). JX claims that he was not informed properly of the entry and visa requirements in the country in question and seeks damages amounting to EUR 1 499.86.
9. JX submitted that the court seised, as the court for the place where he is domiciled, has both international and territorial jurisdiction over his claim on the basis of Article 18(1) of the Brussels I bis Regulation. In response, FTI contended that that court lacks territorial jurisdiction and should reject the claim on that ground. The rules of that regulation do not apply to purely internal situations. The dispute at issue qualifies as such, since both parties are domiciled in the same Member State. In its view, the rules of the ZPO are applicable instead and confer jurisdiction on other courts.
10. In those circumstances, the Amtsgericht Nürnberg (Local Court, Nuremberg) decided to stay the proceedings and refer the following question to the Court of Justice for a preliminary ruling:
‘Is Article 18(1) of [the Brussels I bis Regulation] to be interpreted as meaning that, in addition to providing for international jurisdiction, the rule also concerns a provision on the territorial jurisdiction of national courts in matters relating to a travel contract where both the consumer, as a traveller, and the other party to the contract, the tour operator[,] have their seat in the same Member State, but the travel destination is situated not in that Member State but abroad (so-called “false internal cases”) with the consequence that the consumer can make contractual claims against the tour operator supplementing national provisions on jurisdiction at the court of his or her place of residence?’
11. Written observations have been submitted by FTI, the Czech Government and the European Commission. No hearing was held in the present case.
IV. Analysis
12. The background to the present case is the setback suffered by a consumer in relation to a trip sold to him as a ‘package holiday’ (3) by a tour operator. That situation is, sadly, rather common. In the past three decades or so, tourism has become a mass industry, and those ‘packages’ represent a significant proportion of the travel market. While many consumers are attracted by the convenience offered by such a ‘package’ with regard to travel planning, the promises made therein are not always delivered. All too often, travellers experience problems (as JX apparently did (4)) when travelling to their holiday destination, or discover, on arrival, that the hotel is substandard or, worse, suffer harmful accidents on location due to the negligence of poorly selected local providers. (5)
13. To protect travellers against such setbacks, the EU legislature adopted the Package Travel Directive. That instrument lays down important consumer rights and corresponding obligations for tour operators in relation to those packages. Amongst other things, it imposes on the latter a duty to provide travellers, before the conclusion of any contract, with information on, inter alia, passport and visa requirements in the intended country of destination. (6) In the main proceedings, JX takes the view that FTI failed to fulfil that information obligation to his detriment, and seeks a remedy. To that effect, he brought proceedings before the referring court, which is the court for his domicile in Nuremberg.
14. At the current, preliminary stage of the main proceedings, that court needs to determine whether it has, indeed, jurisdiction to hear and determine those proceedings. It wonders whether Article 18(1) of the Brussels I bis Regulation is relevant in that regard. That provision, which forms part of a section of that regulation dedicated to proceedings related to certain consumer contracts, namely Section 4 of Chapter II, (‘Section 4’), contains two rules of jurisdiction in favour of the consumer, when acting as claimant. More specifically, under Article 18(1), the latter may bring proceedings against ‘the other party to a contract’ (that is, the supplier) either (i) ‘in the courts of the Member State in which that party is domiciled’ (forum rei) or (ii) ‘in the courts for the place where the consumer is domiciled’ (forum actoris).
15. The referring court’s question centres on the forum actoris rule laid down in Article 18(1) of the Brussels I bis Regulation and raises two issues in that respect. First, that court wishes to know whether that rule is applicable to proceedings such as those brought by JX against FTI. Secondly, assuming that this is the case, that court asks whether that rule merely confers (international) jurisdiction on the courts of the Member State where the consumer is domiciled, while the procedural rules of that State determine which court within its territory has (territorial) jurisdiction to hear such proceedings, or whether it confers directly (both international and territorial) jurisdiction on the court for that domicile.
16. Pragmatic considerations underlie those queries. If, on the one hand, the rule at issue is applicable to the proceedings brought by JX against FTI and determines both international and territorial jurisdiction, then the referring court is competent, on the basis of that rule, to adjudicate on the case (since it is, I recall, the court for that consumer’s domicile). If, on the other hand, that rule is not applicable to those proceedings, or merely confers international jurisdiction on the German courts, then the referring court has no such competence. Either way, the German rules of procedure would allocate territorial jurisdiction on the court for the defendant’s domicile in Munich. (7)
17. As I will explain in the following points, it is clear that the forum actoris rule for consumers laid down under Article 18(1) of the Brussels I bis Regulation confers directly both international and territorial jurisdiction on the court of the consumer’s domicile (Section A). However, that rule applies only to cases containing an international element (Section B). Therein lies the crux of the present case. Indeed, there is uncertainty as to whether that requirement is satisfied where both litigants (consumer and supplier) are domiciled in the same Member State, the only international element being the destination of the trip for the purpose of which the package travel contract at issue was concluded (Section C).
A. The forum actoris rule for consumers determines both international and territorial jurisdiction
18. The referring court’s doubts concerning the function of the forum actoris rule for consumers call for a swift response. It stems from the very wording of Article 18(1) of the Brussels I bis Regulation. A comparison of the two provisions it contains is enlightening in that regard. The forum rei rule refers to the ‘courts of the Member State’ in which the professional is domiciled. By contrast, the forum actoris rule refers to the ‘courts for the place’ where the consumer is domiciled. That terminological difference is not trivial. It is designed precisely to indicate that, whereas the first rule merely confers international jurisdiction on the courts system of the designated State, taken as a whole, the second rule gives both international and territorial jurisdiction to the court for the locality of the consumer’s domicile, irrespective of the allocation of jurisdiction otherwise provided for by the rules of procedure of that State. (8)
19. Contrary to what FTI submits, that interpretation reflects exactly the intent of the EU legislature. The latter sought, with the rule at issue, to enable the consumer to bring proceedings ‘as close as possible to his home’. (9) If the procedural rules of the Member State in which the consumer is domiciled were to determine which court within that State has jurisdiction to hear his or her claims, that result would often not be achieved, precisely because, in Member States such as Germany, those rules would designate the court for the seat of the supplier, which may be far from the consumer’s home (a point to which I shall return later). (10)
B. The forum actoris rule for consumers applies only to cases which contain an international element
20. For the forum actoris rule laid down in Article 18(1) of the Brussels I bis Regulation to apply and determine jurisdiction over a given set of proceedings, two cumulative requirements must be satisfied. First, logically, those proceedings must fall within the material scope of the jurisdiction regime (‘the Brussels regime’) of which that rule forms part. Secondly, certain conditions, specific to that rule, must be met.
21. The second requirement is not in dispute in the present case. The conditions in question, flowing from a combined reading of Article 17(1) and Article 18(1) of the Brussels I bis Regulation, are clearly met: the claimant qualifies as a ‘consumer’, as his claim ‘relates to a contract’ (11) which he concluded ‘for a purpose which can be regarded as being outside his trade or profession’ with a supplier; that contract falls within the categories set out in Article 17(1) (an aspect that I will examine in greater detail later) (12); and the defendant against which the claim has been made is ‘the other party to [that] contract’.
22. Nonetheless, an additional condition for the application of Article 18(1) of the Brussels I bis Regulation follows from the first requirement. Specifically, while Article 1(1) of that regulation, which defines the scope of the Brussels regime, is silent on the matter, (13) the Court has repeatedly ruled, starting with its judgment in Owusu, (14) that that regime applies only to legal relationships of an ‘international nature’, that is to say which have connections with more than one country. (15)
23. That implied condition of ‘internationality’ stems from (and is inevitable in the light of) the legal basis of the Brussels I bis Regulation, namely Article 81(2) TFEU. That provision enables the European Union to adopt measures for the purpose of giving effect to the objectives laid down in Article 81(1) thereof, which is concerned with judicial cooperation in ‘civil matters having cross-border implications’. Conversely, the European Union does not have competence to regulate jurisdiction in civil matters devoid of such ‘implications’. Hence, that regulation must be interpreted accordingly.
24. That condition is also consistent with the very purpose of the Brussels I bis Regulation. As an instrument of (EU) private international law, it is designed for the scenario in which a domestic court is called upon to determine a case that has connections with a country (or countries) other than its own. Indeed, those connections raise the possibility of the courts of that other country (or those other countries) hearing and determining the case and, by extension, beg the question of whether it is appropriate for the court seised to do so. The primary purpose of the Brussels regime is to deal with such international conflict of jurisdiction. While some of its rules, including the forum actoris rule for consumers, determine both international and territorial jurisdiction (see point 18 above), they determine the second issue in an ancillary fashion, only in respect of cases where the first issue could arise. It is not their function to deal with domestic conflicts of jurisdiction in purely internal situations. (16)
25. It follows from the foregoing considerations that the forum actoris rule for consumers, like all the other rules of jurisdiction laid down in the Brussels I bis Regulation, applies only where a Member State court is called upon to determine a case which contains an ‘international element’ (that is to say a relevant connection with another country). In such a case, this rule determines both international and territorial jurisdiction. By contrast, it does not interfere with the allocation of territorial jurisdiction in purely internal situations.
C. Whether there is a sufficient international element in the present case
26. That being clarified, as the referring court explains, there is lively debate in Germany (17) on whether the ‘international element’ required for the application of Article 18(1) of the Brussels I bis Regulation is present where a court of a Member State is called upon to adjudicate on a dispute between a consumer domiciled in that State and a local tour operator in relation to the performance of a package travel contract, concluded for a trip abroad (a scenario which would appear to be fairly common). (18) Looking beyond the technicality of that question, the tangible issue is whether the consumer, also in that scenario, can bring proceedings before the court of his or her domicile under the forum actoris rule laid down in that provision.
27. The referring court explains that the German case-law and literature contain differing views on such ‘false internal cases’ (unechteInlandsfälle, to use the words of that court). The prevailing view, which is supported by FTI and the Czech Government before the Court, is that Article 18(1) of the Brussels I bis Regulation does not apply to those cases. The contractual relationship at issue does not have the required ‘international nature’ where the parties (consumer and tour operator) are domiciled in the same Member State. The fact that the destination of the trip for which the contract was concluded is located in a foreign country is not a relevant consideration in that regard. Pursuant to the minority view, which is supported, here, by the Commission, that rule applies even though the litigants are domiciled in the same State. The foreign destination of the trip gives their relationship an international character.
28. In my view, the minority view is, in fact, the correct one. Indeed, a broad understanding of the concept of ‘international element’ needs to be adopted for the purposes of the Brussels I bis Regulation (1). For cases related to the performance of a package travel contract, the foreign destination of the trip is a relevant ‘international element’ in that regard (2). Finally, neither the terms nor the objective of Section 4 calls for a different interpretation (3).
1. The broad conception of the ‘international element’
29. As a starting point on the matter, it is clear that, while the Brussels I bis Regulation does not define the ‘international element’ required for the application of its rules, that concept must be interpreted independently, by reference to the general scheme and objectives of that regulation, in order to ensure that it is applied uniformly in all the Member States. (19)
30. In its case-law, since the judgment in Owusu, the Court has generally adopted, in that regard, a pragmatic approach. In its view, and in accordance with the explanation given in point 24 above, a case brought before a court of a Member State contains a relevant ‘international element’ where the presence of the latter ‘is such as to raise questions relating to the determination of the international jurisdiction of that court’. (20) In other words, the Brussels regime is triggered where a case has a factor connecting it with a foreign country – be that another Member State or a third State – sufficient to raise the possibility of the courts of that country hearing and determining that case (21) and, by extension, to beg the question of whether it is appropriate (or not) for the Member State court seised to do so. Indeed, in such a scenario, the regime in question is a necessary tool for that court to deal with such a question.
31. That test should, in my view, be applied generously. For the Brussels I bis Regulation to fulfil its purpose, it should apply whenever (22) questions of international jurisdiction arise, inter alia, to avoid potential conflicts of jurisdiction turning into actual conflicts. Furthermore, as the objectives of legal certainty and predictability pursued by that instrument (23) presuppose that litigants can easily foresee which jurisdictional regime will be applicable to their dispute and that the Member State court seised can easily determine its competence, (24) the matter should not be overly complicated. It is not a question of verifying whether the foreign courts actually have jurisdiction to rule on the case at hand. (25) It suffices that the factor connecting the case to the foreign country in question constitutes a plausible ground for its courts to hear and determine that case.
32. The international character of a case often stems from the fact that the claimant and defendant are domiciled in different States. Indeed, the fact that a litigant is domiciled on either State’s respective territory constitutes a plausible ground for the courts of each State to hear and determine the case (as various provisions of the Brussels I bis Regulation, including Article 18(1), show). However, that is not the only possible scenario. As the Commission argues, where the litigants are domiciled in the same State, the international character of a case may result from various factors related, inter alia, to the subject matter of the proceedings. (26)
33. While I wish to leave for the next section the application of the abovementioned test to the present case, I will give some illustrations here. For instance, where a court of a Member State is called upon to determine a case which, on the one hand, involves two litigants domiciled in that State but, on the other, relates to a tort that took place abroad, or the tenancy of an immovable property located in another country, the Brussels I bis Regulation applies. (27) In both examples, the factor connecting the case to a foreign country is ‘such as to raise questions relating to the determination of the international jurisdiction of that court’. Indeed, the fact that the tort occurred on the territory of that foreign country or that the property at issue is situated there is a plausible ground for its courts to hear and determine the case. (28) The Brussels I bis Regulation confirms this, as those factors constitute express grounds of jurisdiction under, respectively, Article 7(2) and Article 24(1) thereof. (29) Similarly, in its judgment in IRnova, (30) the Court rightly took the view that an action between two litigants domiciled in the same Member State over the right to patents registered in third countries was ‘international’ in nature. Where a country has granted a patent, its courts may plausibly wish to hear disputes concerning that patent. (31)
34. Admittedly, the Court adopted a somewhat different approach to the ‘international element’ required for the purposes of the Brussels I bis Regulation in the judgments in Parking and Interplastics, (32)Generalno konsulstvo na Republika Bulgaria (33) and Inkreal. (34)
35. In one of the joined cases that led to the first judgment, proceedings had been brought before the courts of a Member State against a defendant domiciled in that State by a claimant domiciled in another State. The Commission expressed doubts as to whether the ‘international element’ required for the application of the Brussels regime was present. Although this was obvious following the judgment in Owusu, and the Court referred to that ruling, it added a supererogatory argument. In essence, the Court referred to another EU instrument, Regulation (EC) No 1896/2006 creating a European order for payment procedure, (35) which applies to ‘cross-border cases’ only, and defines that concept as ‘[a case] in which at least one of the parties is domiciled or habitually resident in a Member State other than the Member State of the court seised’. In the view of the Court, that definition could ‘in principle’ be used to establish the international character of the case for the purposes of the Brussels I bis Regulation, on the ground that consistency should be ensured between the equivalent concepts of those two instruments. Conveniently, the Court had ruled, a few months earlier, that the situation where the claimant is domiciled in a Member State different from that of the court seised fulfils that definition. (36)
36. In the second decision, the Court followed bluntly the previous judgment and, without any reference to its main line of case-law, went on to apply the definition of a ‘cross-border dispute’ provided in Regulation No 1896/2006 to acknowledge that an action brought by a person domiciled in a Member State against the consulate of that State in another country, related to the services provided by the former to the latter in that country, was (evidently) ‘international’ for the purposes of the Brussels I bis Regulation. Finally, in the third decision, the Court referred, first, to that definition and, secondly, to the test restated in point 30 above to decide that the conclusion, by litigants domiciled in a Member State, of choice-of-court agreements in favour of the courts of another Member State constitutes an ‘international element’ sufficient to trigger that regulation. (37)
37. I share the criticism voiced by commentators on that new approach to internationality. (38) Certainly, the wish to ensure the consistency of EU law is laudable. To that effect, the definitions and interpretation given in respect of one EU instrument may sometimes be transposed to another. However, that is not always the case. Circumspection is needed in that regard, for similar concepts may, in different contexts, have different meanings. It is only where there is sufficient proximity between the general schemes and objectives of the instruments in question that such an exercise is warranted. That is not the case here. While the Brussels I bis Regulation and Regulation No 1896/2006 belong, as the Court stated, to the field of judicial cooperation in civil matters having cross-border implications, the proximity stops there.
38. On the one hand, Regulation No 1896/2006 was adopted to tackle the difficulties faced by creditors seeking to recover uncontested claims from debtors in other Member States. It is aimed at simplifying and speeding up the recovery of such claims, through the creation of a uniform procedure allowing a creditor to obtain, from a court of a Member State, a judicial decision on such a claim, which can easily be enforced in the Member State where the debtor’s assets are located, while guaranteeing a level playing field in terms of rights of defence throughout the European Union. (39) The definition of ‘cross-border case’ given in that regulation – based on the respective domiciles of the parties and the seat of the court seised – has a certain logic in that context. Where the parties are domiciled in the same State, the remedies provided by the courts of that State, under its procedural law, are usually sufficient to ensure that the creditor swiftly recovers his or her claim. Therefore, the procedure laid down in that regulation is not necessary.
39. On the other hand, the Brussels I bis Regulation purports to unify the rules of conflicts of jurisdiction in civil and commercial matters. That definition is too narrow and, thus, ill-suited for that purpose. As explained in points 32 and 33 above, questions of international jurisdiction may arise even where the litigants are domiciled in the same Member State and the courts of that State are seised. (40) Moreover, that instrument also contains rules on recognition and enforcement of judgments given by the courts of the Member States. To be fit for purpose, those rules must apply whenever the authorities of a Member State are required to recognise or enforce a decision delivered by a court of another Member State, even where it concerns an internal dispute between two persons domiciled in the latter State. (41) That definition also does not accommodate that situation.
40. That being said, the judgments in Parking and Interplastics, (42)Generalno konsulstvo na Republika Bulgaria (43) and Inkreal (44) can be reconciled with the main line of case-law, provided they are read in the following sense. Since the concept of ‘cross-border case’, as defined in Regulation No 1896/2006, is narrower than the concept of ‘international element’ used for the purposes of the Brussels I bis Regulation, if a case is ‘cross-border’, within the meaning of the first regulation, then, a fortiori, it is ‘international’ for the purposes of the second regulation. However, a dispute may very well be ‘international’ although it does not satisfy the definition of a ‘cross-border case’.
41. Nevertheless, in order to avoid further uncertainty with regard to the ‘international’ scope of the Brussels regime, I urge the Court to refrain, in the future, from referring to Regulation No 1896/2006 in that context. Should the Court wish to draw inspiration from, and to ensure consistency with, other instruments on that issue, Regulation (EC) No 593/2008 on the law applicable to contractual obligations (Rome I) (45) and Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II) (46) fit the bill better, as will be seen below. Those instruments are the counterparts of the Brussels I bis Regulation with respect to conflict of laws, and the EU legislature itself intended for the substantive scope of those three regulations to be interpreted in a consistent matter. (47)
2. The destination of the trip is a relevant ‘international element’
42. In the light of the explanation given in the previous section, there is no doubt, in my view, that, as the Commission submits, where a court of a Member State is seised of a case which, on the one hand, involves litigants domiciled in that State but, on the other hand, relates to the performance of a package travel contract concluded for a trip to a foreign country, the destination of the trip constitutes a relevant ‘international element’, triggering the rules of jurisdiction laid down in the Brussels I bis Regulation. (48)
43. The place of destination of the trip is also the place where, under the package travel contract, (most of) the services were provided or should have been provided to the traveller (the flight would land nearby, the hotel be situated there, and so on). In other words, that contract was, or should have been, essentially performed there. In my view, where a court of a Member State is called upon to determine a dispute related to the performance of a contract, and the place of performance is in a foreign country, that factor is ‘such as to raise questions relating to the determination of the international jurisdiction of that court’. (49) A connection of the kind raises the possibility of the courts of that country hearing and determining the case. In that regard, FTI’s objection pursuant to which that connection is ‘merely factual’ and not ‘normative’ (whatever that last term precisely means) (50) perplexes me. Indeed, that ‘factual’ link is the very reason why one can envision the courts of that country determining the matter at issue (as their geographic proximity with the place of performance could prove convenient for ruling on such a case, particularly in terms of gathering the relevant evidence). That is confirmed by the fact that the place of performance is, precisely for that reason, a ground of jurisdiction in contractual disputes, in the European Union, under Article 7(1) of the Brussels I bis Regulation, (51) and in many States. (52)
44. The judgment in Owusu directly supports that interpretation. I recall that, in that case, Mr Owusu, who was domiciled in the United Kingdom (then a Member State), had concluded a holiday rental contract with Mr Jackson, who was also domiciled in the United Kingdom, concerning a villa in Jamaica. Mr Owusu was the victim of a tragic accident there, allegedly due to the hazardous condition of the place, and sued Mr Jackson for breach of contract. The Court readily took the view that the case contained a relevant ‘international element’ for the purposes of the Brussels regime. (53) The fact that it related to the (deficient) performance of a contract in Jamaica was sufficient in that respect, since that factor clearly raised the possibility of the courts of that country hearing and determining that case. The situation at issue in the present case is similar.
45. An analogy can also be made, in my view, with the Rome I Regulation and the relevant case-law of the Court. Similar to the Brussels I bis Regulation with respect to jurisdiction, that instrument determines the law applicable to a contract where the situation ‘involv[es] a conflict of laws’. (54) In that regard, it stems from the case law of the Court that the rules of the Rome I Regulation are applicable to any contractual relationship with a ‘foreign element’. Indeed, it is only where such a contract has connections with a country (or countries) other than that of the court seised that that contract could potentially be governed by different, conflicting national laws, and that court may wonder which law to apply in order to resolve a dispute. Pursuant to the same case law, that concept of ‘foreign element’ is not limited to the respective domiciles of the contracting parties. The fact that the contract is to be performed in another country constitutes such an ‘element’. (55) A connection of that kind obviously ‘involv[es] a conflict of laws’. The court seised can contemplate the possibility that the law of the country of performance could apply instead of its own.(56) Thus, the rules of that regulation are necessary to resolve that conflict. (57)
46. Contrary to what FTI implies, that interpretation is, in my view, not called into question by the judgment of the Court in Maletic, (58) although I admit that the latter created some uncertainty in that regard.
47. In that case, a couple of consumers domiciled in Austria booked, with a tour operator established in the same State, a package holiday to Egypt via the website of a travel agent established in Germany. Following an issue concerning their Egyptian hotel, the travellers sued both the travel agent and the tour operator for breach of contract before the courts for the place of their domicile, under the forum actoris rule (then) laid down in Article 16(1) of the Brussels I bis Regulation. The referring court asked whether that rule applied with respect to the tour operator, given that it had its seat in the same State as the consumers.
48. The Court answered that the rule at issue was applicable in respect of both defendants but, crucially, adopted somewhat of a complicated reasoning in that regard. It ruled that ‘even assuming that a single transaction, such as the one which led [the consumers] to book and pay for their package holiday on [the travel agent’]s website, may be divided into two separate contractual relationships, first, with the online travel agency … and, second, with the travel operator …, the second contractual relationship cannot be classified as “purely” domestic since it was inseparably linked to the first contractual relationship which was made through the travel agency situated in another Member State’. (59)
49. Many commentators have pointed out the convoluted nature of that reasoning and were perplexed that the Court did not mention the foreign destination of the trip, since that factor would have demonstrated, in an obvious fashion, the international character of the case. (60) Nevertheless, in my view, the silence of the Court on the matter should not be understood as meaning that that factor does not constitute, in its view, a relevant ‘international element’. There is a simple explanation as to why the Court focused on the ‘inseparable’ nature of the links between consumers, travel agency and tour operator instead. There were, in fact, two distinct issues surrounding the application of the forum actoris rule for consumers in that case, namely (i) whether the claims against both defendants were ‘international’; and (ii) whether each of them could be regarded as ‘the other party to [the] contract’ for the purposes of that rule. (61) By its reasoning, the Court gave a broad-brush answer to both issues: under that rule, there was only one, international contractual relationship, and the travel agency and the tour operator, as the ‘other part[ies]’ to that relationship, could be brought together before the courts where the consumers were domiciled. By contrast, the reference to the destination of the trip would have resolved the first issue, but left the second one open. Hence the reason why the Court did not ‘mobilise’ that factor in its decision.
50. I am also not convinced by the Czech Government’s argument that the interpretation suggested in this Opinion would result in tour operators being sued unexpectedly before the courts of domicile of their clients, contrary to the objective of predictability pursued by the Brussels I bis Regulation. Clearly, a business active in an international sector such as tourism can ‘reasonably foresee’ that it may be subject to a jurisdictional regime designed for disputes of an international nature when it organises and sells trips to foreign countries. (62)
51. To conclude, I wish to specify that there is, in my view, no need to distinguish depending on whether the traveller’s claim concerns, specifically, an accident suffered by him or her at the destination of the trip (in complete analogy with Owusu), the substandard hotel rooms or, as in the main proceedings, the fact that the traveller never took the trip because he or she was not informed that a visa was required or because he or she never received the plane tickets (and so on). While the connection between the claim and the foreign country may be stronger in some cases than in others, I recall that the assessment of whether a dispute contains an ‘international element’ should not be overly complicated (see point 31 above). The Member State court seised need not carry an extensive analysis of the substance of the claim to determine such a simple matter. Any case involving a traveller’s claim against a tour operator concerning problems, whatever their precise nature, suffered by the former in relation to a trip abroad, organised and sold as a ‘package’ by the latter, should be treated as international for the purposes of the Brussels I bis Regulation, for the reasons explained above. The destination of the trip is an easy factor to check, and it makes the applicable jurisdictional regime predictable for the parties, as explained in the previous point.
3. Neither the terms nor the objective of Section 4 call for a different interpretation
52. Contrary to what FTI contends, the interpretation suggested in this Opinion is not called into question by the fact that the forum actoris rule laid down in Article 18(1) of the Brussels I bis Regulation, as an exceptional provision, should be interpreted strictly. (63)
53. From the outset, I would recall that the (implied) requirement of an ‘international element’, which is at the heart of the present case, defines the scope of the Brussels I bis Regulation generally. As such, that requirement pertains, strictly speaking, to Article 1(1) (see point 22 above), not Article 18(1) thereof. Logically, it should be measured by the same yardstick for all the rules of jurisdiction laid down in that regulation, irrespective of the nature of the specific provision at issue. (64)
54. That preliminary remark aside, it is clear to me that interpreting that requirement to the effect that the forum actoris rule laid down in Article 18(1) of the Brussels I bis Regulation applies to cases involving a consumer and a supplier domiciled in the same State in relation to a contract that was, or had to be, performed in another State is not in conflict with the terms of Section 4.
55. Starting with Article 17(1) of the Brussels I bis Regulation, I recall that the latter requires, for the application of Section 4, that a contract be concluded between a consumer and a supplier and that this contract falls within one of the categories referred in points (a) to (c) of that provision. Points (a) and (b) relate to types of contracts (contracts for the sale of goods on instalment credit terms and credit contracts respectively), without any reference to the respective domicile of the contracting parties. Point (c) requires, for all other contracts (including, thus, package travel contracts), that the supplier ‘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 or to several States including that Member State, and the contract falls within the scope of such activities’. There is nothing in the wording of that provision to indicate, or even imply, that the consumer and supplier should necessarily be domiciled in different States. (65) Clearly, a supplier may ‘pursue commercial or professional activities in the Member State of the consumer’s domicile’ while having its seat in that country.
56. Secondly, the terms of Article 18(1) of the Brussels I bis Regulation do not restrict the forum actoris rule to cases where the consumer and professional are domiciled in different States. On the contrary, that provision specifies that the rule in question applies ‘regardless of the domicile of the other party’. I am well aware that, as FTI points out, the intent behind the addition of those terms was for consumers to be able to rely on that rule against suppliers domiciled in third States. (66) The fact remains that, as the Commission observes, those terms are broad enough also to cover the situation where the supplier is domiciled in the same the Member State as the consumer.
57. Finally, Article 19 of the Brussels I bis Regulation, which imposes limits on the use of choice-of-court agreements in consumer matters, expressly permits such agreements where they are entered into by a consumer and a supplier ‘both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same Member State’, under certain conditions (see paragraph 3 of that article). Evidently, the EU legislature contemplated the possibility that the rules laid down in Section 4, including Article 18(1), apply even in that scenario (provided that the case contains another relevant international element).
58. Applying the forum actoris rule laid down in Article 18(1) of the Brussels I bis Regulation to cases where the consumer and supplier are domiciled in the same State, but the contract at issue was, or should have been, performed in another country also does not go beyond what is required by the specific objective of Section 4.
59. I recall that the rules of Section 4 are designed to protect the consumer, as the party deemed to be economically weaker and less experienced in legal matters than the supplier. (67) In particular, the forum actoris rule in question does so by (greatly) facilitating the consumer’s access to justice, so that he or she is not discouraged to enforcing his or her rights. (68)
60. In that regard, FTI submits, following the prevailing view stated above, that the only scenario that the EU legislature sought to prevent with that rule was that of the consumer being compelled to bring his or her action before the courts of another Member State. The legislature wanted to protect the consumer from having to be subject to a foreign legal system, operating in a language with which he or she may not be familiar, and from the ‘burdensome distance’ that may separate that consumer from those foreign courts. That special protection is not justified where the consumer and supplier are domiciled in the same State. In that event, the courts of that State would necessarily have jurisdiction.
61. In my view, while the consumer being discouraged from enforcing his or her rights by the difficulties inherent in bringing proceedings against a supplier in a foreign country is clearly the main scenario that the legislature had in mind, (69) it is not the only one. If that were the case, the legislature would have limited itself to allowing the consumer to bring proceedings before the courts of the Member State in which he or she is domiciled. The fact that Article 18(1) of the Brussels I bis Regulation goes a step further, and allows the consumer to seise the specific court of his or her domicile, shows that the drafters were concerned that the consumer could also be discouraged from suing if the competent court, while being within the Member State in which he or she lives, were not the court for his or her domicile. As the Court has already noted in a different context, (70) the distances separating the consumer from the competent court could be ‘burdensome’ even within a Member State – for instance, if the court for the domicile of the supplier were located in a remote city – and sometimes more so than between two Member States, (71) which could make it difficult for the consumer to enter an appearance. (72) Clearly, the legislature also intended to avoid such a situation.
62. FTI’s objection that the rules of procedure of the Member States do not always require the consumer to appear in person, or sometimes allow for remote court hearing, so that such an inconvenience may not arise in practice, is not convincing. One could also object that, under those rules of procedure, the competent court sometimes happens to be relatively close to the consumer’s domicile. (73) However, in other cases, the consumer may have to appear in person, and the competent court may be far way. Likewise, if the consumer had to sue in another Member State, he or she would sometimes happen to know the language and be familiar with the process of its courts, which could also be close to him or her. Conversely, in other situations, the whole process could be entirely foreign to the consumer. All in all, as the Commission submits, the application of the forum actoris rule laid down in Article 18(1) of the Brussels I bis Regulation cannot depend on such a case-by-case assessment of the practical difficulties that the consumer would actually face in case at hand. Otherwise, the scope of that rule would be unpredictable. Those difficulties are assumed to exist in the majority of cases, and are dealt with accordingly.
V. Conclusion
63. In the light of all the foregoing considerations, I propose that the Court answer the question referred by the Amtsgericht Nürnberg (Local Court, Nuremberg, Germany) as follows:
Article 1(1) and Article 18(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, read in conjunction,
must be interpreted as meaning that the rule of jurisdiction in favour of the courts for the place where the consumer is domiciled laid down in the second provision is applicable to proceedings brought by a consumer domiciled in a Member State against a tour operator domiciled in the same State in relation to a package travel contract concluded for the purpose of a trip to a foreign country. That rule confers both international and territorial jurisdiction on those courts, without reference to the rules on allocation of territorial jurisdiction in force in that Member State.