1. Formal problems arising from the peculiarities of entering into contracts online

Clickwrap clauses (for a definition, see Specht v. Netscape)¹⁰ and browsewrap agreements¹¹ form part of a very widespread system of operation and do not always offer sufficient guarantees for informed consent to all the contractual commitments.

In principle the acceptance of these formulas for consenting to conclude a contract does not raise problems, though they are not explicitly provided for in most systems. In this respect, and referring specifically to submission to arbitration, the UNCITRAL recommendation of 7th July 2006¹² establishes two criteria for construing art. II.2 of the New York Convention of 10th June 2008 on the recognition and execution of foreign arbitration decisions. This precept establishes an obligation for all sides to sign a written agreement to submit to arbitration to settle their differences (a contract or commitment signed by the parties or contained in an exchange of notes or telegrams). The UNCITRAL recommendation establishes that this article should be applied while recognising that the circumstances it describes are not exhaustive.

A very different matter is determining whether these formulas for agreement, while specific in some cases, are insufficiently clear to presume that the contracting party/consumer/user has voluntarily agreed to all the terms to which they are committing themselves or has in fact done so in ignorance (due to error or bad faith on the part of the supplier).

Below are some recent examples of jurisprudential decisions (in the USA and Canada) motivated-among other arguments-by consumers’ claims of having difficulty accessing all the contractual clauses, there being no need to read the commitments before agreeing to them or the placing of some of the contractual commitments on other web pages.

Worth emphasising-because of the many questions related to online contracts discussed in it-is the decision by the Cour Suprême de Canada in Dell v. Union des consommateurs.¹³ Contradicting decisions handed down at the first instance and at appeal, the court did not consider it to be relevant that the jurisdiction clause (based in the United States), included in the pre-formulated standard contract presented by the Dell company to its customers had to be accessed via an external link (hyperlink) leading to the website of the arbitration entity designated as competent in the contract. Moreover, unlike the lower courts, neither was importance attached to the fact that this clause was written in smaller characters than the rest of the contract and located at the bottom of the page, all for the confessed purpose of not distracting the user’s attention from the main subject, in short the purchase of the product. For these and other reasons the court considered the jurisdiction clause binding on both sides and did not allow the claimants to go to Canadian courts, so contradicting the criteria upheld by the courts of first instance and appeal.¹⁴

In the subsequent De John v. The TV Corporation,¹⁵ the court, faced with the argument asking the contract to be declared null and void because of ambiguity in the clause, took a very similar position (“These claims fail because DeJohn had an opportunity to review the terms of the Register.com Agreement by clicking on the hyperlink Register.com provided. The fact that DeJohn claims that he did not read the contract is irrelevant because absent fraud (not alleged here) failure to read a contract is not a get out of jail free card”).

Decisions in other cases maintain a similar position. In B. G. Forrest v. Verizon Communications Inc.,¹⁶ the court ruled that the consumer making the claim was being adequately informed of the choice of court even though the pertinent clause was in a place where reading it all at once was impossible, the only option being to read it in part in a scroll box, even though the designated competent court was located in the supplier’s state. In Net2Phone, Inc. v. The Superior Court of Los Angeles,¹⁷ it was considered as a habitual practice in Internet contracts for the terms of the contract -like the jurisdiction clauses- only to be available via hyperlink and this way of informing consumers about the competent court was considered not unfair, before going into other underlying arguments.¹⁸ The opinion of the court handed down in the case D. Hubbert v. Dell,¹⁹ is revealing in the matter of small print in online contracts (“Although there is not conspicuousness requirement, the hyperlink’s contrasting blue type makes it conspicuous. Common sense dictates that because the plaintiffs were purchasing computers online, they were not novices when using computers. A person using a computer quickly learns that more information is available by clicking on a blue hyperlink”).

There are two decisions that contradict this. First is that handed down in Specht v. Netscape Communications Corp.,²⁰ where the court considered that consumers could not be bound by the jurisdiction clause as they were not adequately informed of it. The reason was that to download the program they did not have to agree explicitly to any clause (“browsewrap agreement”), but the supplier nevertheless considered it issued by the simple fact of downloading as it was printed at the foot of the web page, though it was not necessary to read to the bottom of it to download the program, which was also free.

In M. Defontes and N. Long v. Dell Computers Corp. et al.,²¹ it was established that the submission to arbitration clause was deliberately placed at the bottom of the supplier’s web page (from which the order had to be made) and this location was not ideal for consumers to be properly informed of the conditions under which they were entering into a contract.

Finally, an unpublished decision -M. Cohn v. Truebeginnings-²² the grounds in fact of which, as well as being unusual but which, on the other hand, the court agreed to hear,²³ stand out because online consumers are treated in a different way from offline consumers, assuming they have a higher level of information and requiring from them greater diligence in accepting contractual clauses designating the competent law and court.

Alongside these decisions -which are not entirely consistent between one another- about the information given to consumers online and the formal circumstances in which they receive it, it should be pointed out that it is widely believed that the vast majority of consumers (online and offline) tend not to read clauses in contracts.²⁴

2. Striking down the jurisdiction clause according to the criterion of benefit to the consumer

Within a context of absolute implementation of pre-formulated standard clauses (especially those specifying a court or arbitrator), there is contradictory jurisprudence on this question. On the one hand, decisions can be found that allow the consumer to make a claim before a forum more favourable to him or her (because it involves cheaper, more convenient litigation in terms of travel, etc., or because legislation in the state in question has specific regulations in the are of small claims or class action or similar benefits). On the other hand, there are decisions that, while appreciating the benefits to the consumer of litigating in a specific court, impose obedience to the contractual clause.

The former group includes a large number of decisions. Thus, in Dix v. ICT²⁵ the court allowed the consumer claimants to lodge a claim with the courts in their state (Washington), despite the contractual jurisdiction clause specifying the supplier’s state (Virginia) because legislation in the latter did not allow class actions. As the claims by each of the consumers were for small amounts, forcing them to abide by the jurisdiction clause would have meant a lack of legal protection, and consequently infringed a fundamental public policy of the state, which is punishable under the pertinent law, the Consumer Protection Act. In the case of America Online v. Pasieka²⁶ the court ruled on the basis of similar arguments. Also similar are the legal decisions in Aral v. Earthlink²⁷ and C. Comb v. Paypal,²⁸ though in both cases what the court allowed was to ignore the jurisdiction clause by going to ordinary courts because the former option would implicitly involve renouncing the taking of class actions. The former offered an interesting line of reasoning not to apply the law of the state of Georgia, as the contract stipulated, but which would have meant obligatory submission to arbitration and no possibility of any class action. The court found sufficient objective grounds for applying this applicable jurisdiction clause but considered that California had a greater material interest than Georgia in the matter and therefore ruled that the law of California should apply, prioritising the possibility of bringing class actions in processes of this kind over any other consideration.

In the same way, Williams v. America Online,²⁹ Licitra v. Gateway³⁰ and Scarcella v. America Online³¹ stand out for favouring access by consumers -in view of the small size of their claims- to the courts of the states in which they are resident whatever other stipulations may be contained in the contract. In the latter, moreover, the fact of the limit -higher or lower- set by legislation in each state for access to small claims courts was highlighted as a factor where consumers’ interests take priority over the stipulations of the contract.

On the other hand, different opinions are stated in the above-mentioned Dell v. Union des consommateurs, Net2phone v. The Superior Court of Los Angeles County and D. Hubbert v. Dell and also -giving priority to the contractual agreement over the possibility of class action- there are Caspi v. Microsoft³² and Groff v. America Online.³³

Arguments are even to be found -in line with these jurisprudential decisions- that tie up with the theory of economic analysis of law, like the recent case of H. and S. Meier v. Midwest Recreational Clearinghouse.³⁴ This decision, arising from the purchase of a defective vehicle on an online auction platform, deals with the difference in criteria between the consumer claimants who want to lodge a claim before the courts of their home state (California) and the wish of the defendant company to enforce the jurisdiction clause imposed in the contract, which submits the case to the courts of the company’s home state (Minnesota). The courts took the position established in the seminal decision -radically opposed to the interests of consumers- handed down by the Supreme Court in Carnival Cruise Lines v. Shute,³⁵ where it is argued that suppliers presumably translate the benefit provided by clauses stipulating a nearby jurisdiction into a lower price, so that consumers benefit in terms of cost. The court -in an exaggerated presumption of good faith on the part of suppliers- ended by stating that there is no evidence that the inclusion of clauses stipulating a jurisdiction close to the supplier represent an attempt to dissuade consumers from making claims.

Finally, this ignores the theory established in Zippo v. Zippo concerning passive and active consumers and the stream of commerce in stating that the supplier’s website is accessible from anywhere in the world, which means that if the jurisdiction clause in the contract were not upheld the supplier could face a multitude of potential jurisdictions.

3. Striking down certain standard contractual clauses because they are unfair to consumers (procedurally and substantively unconscionable)

North American courts have resolved the controversy over abusive clauses by applying criteria of disproportionality or unfairness because of the imbalance between the two sides and the one-sided nature of the obligations arising from them. This is on the basis that it is a question of pre-formulated standard clauses with no real negotiation between the sides (a take or leave it basis).

The main defect in this formula, which could be a good solution to balance the position of consumers, is that it relies on jurisprudential criteria, which means that decisions can be based on widely differing criteria. Thus, there are decisions rejecting a particular standard clause that stipulates submission to a certain court, arbitrator or applicable law as being unfair to consumers, as in the above-mentioned C. Comb v. Paypal, Aral v. Earthlink, Bragg v. Linden, Defontes v. Dell, Mazur v. eBay or others such as Oestreicher v. Alienware.³⁶ In these decisions it is established that the waiver by consumers in the respective standard online contracts of the possibility of bringing class actions, small claims actions or proceedings through the jurisdiction of their place of residence places them in an unconscionable position of imbalance. To take just one example, the decision of the court in Aral v. Earthlink: “Although Aral did not allege fraud, the gravamen of the complaint is that numerous consumers were cheated out of small sums of money through deliberate behaviour. Accepting these allegations as true, as we must at this stage of the proceedings, the class action waiver must be deemed unconscionable under California law”.

It is true that these positions came about as a consequence of attempts by certain consumers to bring a claim before a court that would be more favourable to them, against the resulting opposition of the supplier who drew up the contract. On other words, they represent neither a general rule nor the result of an action as a matter of course by judicial bodies. Proof of this are the decisions in the opposite sense, like the above-mentioned Dell v. Union des consommateurs and D. Hubbert v. Dell. The former considered a waiver of class actions admissible (‘‘malgré son importante portée sociale, n’est qu’un véhicule procedural dont l’emploi ne modifie ni ne crée des droits substantiels’’), even in the case of entering into a standard contract (‘‘Cela ne signifie que l’adhérent ne peut pas consentir véritablement au contrat et être lié par chacune de ses clauses, même si certaines d’entre elles pourraient être nulles ou sans effet par l’application de quelque autre disposition de la loi’’).

In any case this is an excessively arbitrary solution to the difficult challenge of compensating for the exercise of false free will in online consumer contracts.

1. Pammer/Hotel Alpenhof

In the first case of the two included in the judgement, Mr. Pammer, resident in Austria, lodged a claim against a travel agency domiciled in Germany before the Austrian courts. Prior to this, Mr. Pammer had, through an intermediary company, arranged a voyage on a cargo ship from Trieste to the far east on conditions that in his opinion were not met on the means of transport,⁴⁷ so that he refused to embark. In his claim, Mr. Pammer applied for a refund of the sums advanced plus interest. The Austrian court that heard the appeal (Oberster Gerichtshof) formulated the following question to the CJEU: If an intermediary’s website can be accessed via Internet, is this sufficient to meet the criterion that the business is “directed” (to the member state where the consumer is domiciled) in the sense of article 15, section 1, letter c), of Regulation 44/2001?

In the second case, the claimant resident in Germany used the Hotel Alpenhof website to book several rooms for a one-week stay. The booking and the pertinent confirmation were verified by email as shown on the website. The client stated he was unsatisfied with the hotel’s services and left without paying even though the management offered him a discount. Consequently, a claim was lodged against the said client before the Austrian courts for the sum of 5,000 euros. Following the corresponding exclusion due to lack of jurisdiction, on appeal the case reached the Oberster Gerichtshof, which sent the same request for a preliminary ruling to the CJEU as in the case quoted above.

In its decision⁴⁸ the CJEU cites a series of points of evidence -though not an exhaustive list- that can constitute presumptions that the seller’s business is being directed at the member state where the consumer is domiciled, with verification of this evidence being the job of the judge in the state in question. These are: the international nature of the business, the description of itineraries from member states other than that in which the seller is domiciled, the use of a language or currency other than those habitually used in the member state where the seller is domiciled, with the option of confirming bookings in this language, expenditure on a service redirecting to websites on the Internet in order to facilitate access to the seller’s site or that of their intermediary for consumers domiciled in other member states, the use of a top-level domain name other than that of the member state in which the seller is domiciled and the mention of an international clientele made up of customers domiciled in different member states.

Though late in relation to other jurisdictions compared here, this decision for the first time lays down a framework of solutions making it possible to presume when a consumer can be considered to be protected for the purposes of enabling litigation always to take place before the courts of their home state.⁴⁹

The court’s solution ignores as irrelevant whether the website is interactive, i. e. the mere fact of it being possible to access a website in the member state where the consumer is domiciled is not sufficient to state that a business is directed at the said state. It must be assessed on a case by case basis whether the supplier of goods and services is directing their business at the specific state where the consumer is domiciled and to do this the evidence mentioned above must be taken into account. The difference between active and passive websites is therefore no longer so decisive: as the Advocate General⁵⁰ recalls, directed business can exist both from interactive and from static sites. Moreover, the latter can display more determining evidence than the former of wishing to attract customers in a specific state.⁵¹

The decision does not incorporate the criterion of commercial business carried on in the past with consumers from other member states, i. e. a kind of historical criterion to verify the supplier’s business in other member states, so that a series of contracts made with other consumers in other states gives an idea of the frequency and intention in this respect. It seems reasonable that a single contract with a single consumer, together with other evidence as mentioned above may be sufficient.

The decision takes up the “old” concept, imported from north American judicial culture, of the stream of commerce,⁵² whose relevance for the purposes of defending the right to a personal jurisdiction for a specific consumer has been diminished over time.

In short, the CJEU does not seem to have been wrong in its evidence-based formula for determining when a supplier is directing their business towards the member state where a consumer is domiciled and therefore affording the said consumer a higher level of protection in determining the international jurisdiction of the courts in the state where they live. The CJEU in any case makes clear that it is not sufficient for a consumer to be able to access a contractor’s website to be able to affirm that its business is aimed at a state in the sense of art. 15.1 c) of the Brussels I Regulation (now replaced by the Brussels I bis Regulation).⁵³

2. Mühlleitner

A further case between a consumer resident in Austria and a supplier with their commercial establishment in Germany was still awaiting a decision when the CJEU gave its Pammer / Hotel Alpenhof⁵⁴ ruling.

In this case, Ms. Mühlleitner, resident in Austria, searched for a German-manufactured vehicle on the Internet with a view to purchasing it for private use. After making a selection using a website, according to her search criteria, her request was forwarded to the firm Autohaus Yusufi GbR, based in Hamburg and run by the Yusufi brothers, which offered vehicles for sale. After an initial contact by telephone (the company telephone number included an international code) in which she was guaranteed that her status as an Austrian national was no obstacle to buying the vehicle, the consumer travelled to Germany and through a contract of sale purchased a car from the Yusufi brothers for 11,500 euros, which she paid immediately. After returning to Austria she found that the vehicle she had purchased suffered from major defects and demanded that these be repaired. When the sellers refused she proceeded to lodge a claim before the jurisdictional body in her place of residence, applying for cancellation of the contract of sale she claimed to have concluded as a consumer. Following the corresponding exclusion due to lack of jurisdiction lodged by the defendants, who considered that proceedings should be heard by German courts, arguing among other reasons that the claimant/consumer had concluded the contract at the domicile of the company, which did not aim its activities at Austria, on appeal the case reached the Oberster Gerichtshof. This body posed the following question to the CJEU: Does the application of article 15, section 1, letter c) of the Brussels I Regulation require that the contract between consumer and vendor have been concluded at a distance?

The requirement for entering into the contract at a distance or, which comes to the same thing, that the consumer who travels to consume does not have the procedural protection of always being able to litigate before their own courts, was set down in the 1968 Brussels Convention,⁵⁵ predecessor of Regulation 44/2001 and the current Regulation 1215/2012. This requirement has disappeared from current rules but not clearly enough for national courts not to request a preliminary ruling.

Moreover, the Pammer / Hotel Alpenhof judgement discussed above leaves room for doubt in its recitals 86 and 87. Thus, one of the arguments used by the claimant (Hotel Alpenhof) for not applying art. 15.1.c) of regulation 44/2001 was that the contract with the consumer was concluded in situ and not at a distance as the keys to the rooms were handed over and the payment made in situ. The court did not consider this fact relevant but upheld the application of the precept as the fact is that the booking and confirmation were effected at a distance, so that the consumer concluded the contract at a distance,⁵⁶ The court could therefore give the impression that it was attaching decisive importance to this requirement for entering into the contract at a distance for the purposes of affording procedural protection to the consumer.

However, adding this requirement -provided for in the previous regulations of the 1968 Brussels Convention and subsequently abolished- would mean not fulfilling the primary purpose of this precept, protecting the weaker party in the legal relationship of consumption. It is true that this requirement is mentioned in the Joint Declaration of the Council and Commission on articles 15 and 73 of Regulation 44/2001⁵⁷ and also in recital twenty-four of the Rome I Regulation,⁵⁸ but as Advocate General Trstenjak rightly points out (recital 55), this requirement poses problems with different types of contract in which the consumer can only book hotel or tourist services at a distance and then conclude the contract in the place where they use the services. Language courses and health or cosmetic treatment could also be added to this list under certain circumstances.

IN any case, it should be recalled that the expansion of the concept of a consumer contract beyond the letter of Regulation 44/2001 had already been put into practice by the CJEU in the Ilsinger case.⁵⁹ Faced with a false offer of a prize which led to a claim by the addressee the question was raised of whether a consumer contract exists in such cases.⁶⁰ The court considered that for the privileged jurisdiction of consumer contracts to apply, there must obviously be a contract and the mere offer of a prize is not sufficient. However, the court, breaking with previous jurisprudence that -in application of the said precept- attached importance to the object of the contract and limited its application to consumer contracts of a synallagmatic nature, declared that the exclusion of unilateral consumer contracts was unfounded.

The court finally settled the question in Mühlleitner when it established that both making contact at a distance, as was the case with the claimant in the main proceedings, and booking a good or service at a distance or, a fortiori, concluding a consumer contract at a distance, are evidence of a binding contract for the said business.⁶¹

3. Emrek

In this case⁶² the CJEU went a step further in its attempt to profile the requirements of art. 15.1. c) of Regulation 44/2001 (now 17.1.c) of Regulation 1215/2012). The question is posed to the CJEU of whether it is necessary for there to be a causal relationship between the vendor’s website and the conclusion of the contract with the consumer.

The facts of the matter are, in summary, that Mr. Emrek, resident in Saarbrücken (Germany), purchased a used vehicle from the company run by Mr. Sabranovic in Spicheren (France). The vendor had an active website which mentioned the address of his company, including the French telephone numbers and a German mobile telephone number, together with the respective international codes. The metropolitan areas of the two municipalities are inter-related in such a way that, despite belonging to different states, their residents co-exist in a practically shared space, there being urban continuity which at some points ignores the border between the two countries.

Due to a problem with the warranty on the vehicle, Mr. Emrek lodged a claim against Mr. Sabranovic before the German court. This court declared that it could not hear the claim due to a lack of international jurisdiction as it considered that the defendant had not directed his business at the state in which the claimant was domiciled.

After this decision was appealed against at a higher court, the Amtsgericht Saarbrücken made a request for a preliminary judgement from the CJEU: Does article 15, section 1, letter c) of Regulation no. 44/2001 demand as an additional unwritten requirement in cases where a trader’s website meets the criterion for “directed” business that the consumer was induced by the website run by the trader to conclude the contract, so that the website has a causal relationship with the conclusion of the contract?

It was already made clear in the Pammer/Hotel Alpenhof judgement that the mere accessibility of the Internet is not sufficient in itself to determine that the business is aimed at a specific member state. Other factors such as the content of the website must be taken into account and related to yet other criteria that help to objectively identify the specific addressees of the offer.

The advocate general in the Emrek case, Pedro Cruz Villalón, made his opinion clear when he stated that art. 15.1.c) cannot form the basis for a requirement that a causal relationship exist between the offer aimed at the consumer’s state and the decision by the consumer to conclude a specific contract (recital 21). This causal requirement would also pose undoubted problems of proof, which would fall on the consumer and often leave him or her without the protection that should be afforded by Regulation 44/2001 (as well as the current Regulation 1215/2012). However, the advocate general argues that the said causal relationship might be qualified evidence that there has been business directed at the state where the consumer is domiciled (recital 26). This conclusion is founded on elementary common sense: if there has been business directed at another member state, it is logical for this causal relationship to have come about.

The advocate general considers that, in the Emrek case -even in the absence of a distance contract and pre-contractual activity- there may be grounds to conclude that there was an offer directed at the state where the consumer is domiciled and these involve application of the privileged jurisdiction provide for in arts. 15 et seq.

The said grounds would in this case be the geographical location in which the commercial relations took place. Mr. Sabranovic’s business is in a French municipality within a metropolitan area closely linked to the city of Saarbrücken. It would seem logical that if a vendor directs an offer to one of these municipalities this would also be equivalent to making it available to the inhabitants of the other municipality as they form what is known as a conurbation. Thus, the offer would also be directed at the inhabitants of the municipality in the other member state. It does not seem - in the opinion of the advocate general - an excessive risk for sellers that claims could be made against them in the courts of the neighbouring state. It seems, however, that the question is again being posed to the CJEU in relation to circumstances where the element of confusion of the buyer’s and seller’s municipalities not being in the same geographical area does not arise. In this case the causal relationship between the advertisement and the conclusion of the contract, and the interactivity of web pages, will arise again and recourse to the geographical location of supplier and consumer will not be effective.⁶³

In fact, this matter is based once more on the “old” approach to the jurisprudence of the above-mentioned Zippo v. Zippo and Howard v. Missouri Bone cases. It is a question of finally proving through evidence that business has been directed at the consumer’s state (“…«doing business» means conducting business in Illinois of such a character and to such an extent that may be inferred that the defendant has subjected itself to the jurisdiction and laws of this state and is bound to appear when properly served”).⁶⁴

This sentence by the Illinois Appellate Court is interesting because it settles the question of jurisdiction for a claim by a consumer against a medical service provider whose products they found out about on the Internet. The two parties resided in neighbouring states (Missouri and Illinois respectively). A similar question to Emrek was raised here, i. e. the consumer found out about the service thanks to the directed business of the supplier and it sets out to clarify this situation for the purposes of forcing the claimant into the defendant’s jurisdiction. The latter maintains a website accessible from Illinois (the consumer’s state) on which an appointment with the defendant can be requested. The defendant had also previously advertised their services by sending leaflets to high schools and other educational centres in the said state. Finally, it was proven that the defendant gave a presentation in a city in the state of Illinois.

The court considered that the level of interactivity of a website is irrelevant. In its opinion the claimant chose to contact the defendant and travel to the latter’s state to receive the rehabilitation services offered. The decision differentiated between promotional actions taking place in the claimant’s state and the services themselves, that are in fact provided only in the defendant’s state. For all these reasons the court considered it unjustified to submit the defendant to the courts of the consumer claimant’s state of residence.

It therefore does not share the criteria followed by the CJUE in Emrek. This disparity in reasoning is of no further relevance because they are different national jurisdictions, but it illustrates the possibility of future divergences and gives the impression that there is no single response in this area and in the future there may be decisions by the CJEU in the future that qualify those mentioned above.

In short, what these decisions seek is a useful list of points of evidence that the online supplier must take into account if they wish to avoid claims being lodged against them in the member state of the consumer in question.⁶⁵ In any case, once the product has been posted on the network it seems to be increasingly complicated to avoid this; it may be necessary to wait for CJEU jurisprudence to consider that in some circumstances the business has not been directed at the consumer’s domicile and that the competent jurisdiction must in fact be that of the supplier -as defendant- in order to assess the evidence that has led the court to reach this conclusion.

4. Maletic

The case of Maletic v. Lastminute v. TUI⁶⁶ raises the requirement for the contract to be international in nature or, to put it another way, the scope of application of the jurisdiction to protect the consumer under Regulation 44/2001.

The litigation arose as a consequence of a booking for a holiday package made by the claimants (Mr. and Mrs. Maletic), resident in Bludesch (Austria), on the website of the intermediary lastminute.com, resident in Germany. The organiser of the holiday was the TUI company, based in Vienna (Austria). The booking was confirmed by the intermediary, which issued the pertinent invoice although on the details of the holiday a different hotel was shown from that in the booking. The claimants did not notice the error until they arrived at the destination, where they paid a supplement of 1,036 euros to be able to stay in the hotel they originally booked. In order to recover this supplement and in compensation for the inconvenience they had suffered on their holiday, the claimants lodged a claim with the courts of their area of residence (Blumenz, Austria), jointly, against both the intermediary lastminute.com and against the organiser TUI. The Austrian court did not accept the claim due to lack of jurisdiction over the organiser as Regulation 44/2001 is only applicable to international litigation and therefore would serve to determine jurisdiction in the case of the claim against the intermediary. In the case of the claim against the organiser of the holiday -in the view of the court- the competent jurisdictional body would be the court in the claimant’s domicile, i. e. Vienna, not Blumenz.

Following the pertinent appeal by the claimants, the Austrian court decided to suspend the proceedings and put the following request for a preliminary judgement to the CJEU: must article 16, section 1 of Regulation nº 44/2001 (now art. 18 of Regulation 1215/2012) be construed as attributing jurisdiction to the place in which the consumer is domiciled, in the sense that when the other contractual party (in the case at issue a travel agent domiciled abroad) has recourse to a co-contractor (in this case a tour operator domiciled in the same country), the aforesaid article also applies to the co-contractor domiciled in the same country as the actions lodged against both?

The response of the CJEU was affirmative, allowing a claim -in application of the consumer’s jurisdiction- against both companies through the courts of the consumer’s home state

Justification could be found rather in material criteria of protection of the weaker party and a certain logic of taking the inter-related contracts together before the same jurisdiction than in merely formal criteria or a strict interpretation of regulatory precepts.

That is to say, the basis of the decision lies in protecting the consumer as the weaker party in the contract and in reducing to the maximum the possibility of parallel proceedings to avoid irreconcilable decisions being handed down in two member states (recital 30).

If requirements of a more technical or formal nature are sought, the CJEU had already made clear that for the Brussels Convention to apply it was not necessary at all for the domiciles of the parties to be located in different member states.⁶⁷

The domicile of the supplier of goods and services under consumer contracts loses further importance with the current rules of Regulation 1215/2012, as in art. 18.1 it allows claims in the jurisdiction of the consumer’s state against vendors based in non-EU states. There could be said to be a certain logic in this trend in the distribution of international jurisdiction as referred to in some parts of doctrine.⁶⁸