Brussels, 10/09/2012 (Agence Europe) - The Court of justice has stated in a ruling returned on Thursday 6 September in the case C-190/11 that a consumer has the option to bring a foreign trader before the courts of the country in which he or she resides even if the contract in dispute was not a distance contract. These national courts remain competent even if the interested party personally travelled to the trader's member state to sign the contract.
The Austrian Supreme Court asked the Court to interpret the regulation on legal competence, the recognition and execution of decisions in civil and commercial matters (regulation 44/2001). This text stipulates that the consumer has the option to bring the trader with which he or she has concluded a contract before the national courts, even if that trader is domiciled in another member state. Two conditions must however be met: i) the trader must carry out his or her commercial professional activities in the member state in which the consumer resides or manage these activities in respect of that member state by any other means (for example via the internet); ii) the contract to which the dispute refers must come under the heading of these activities. The Austrian Court asked whether the contract between the interested party and the trader being a distance contract would be an additional condition.
The Court answered this question in the negative. First of all, it states that although the European rules in place up to 2002 stipulated that in order to be able to take the matter before the national courts, the consumer had to have signed the contract in his or her country of residence, the regulation now in force no longer stipulates this condition, in order to ensure better consumer protection. According to the European judges, the vital condition to which the application of the above-mentioned rule is subject is the one relating to commercial or professional activities targeting the state of domicile of the consumer. In this view, both the distance contract conclusion and the distance reservation of a good or service or, a fortiori, the conclusion of a distance consumer contract, are indications that the contract is related to an activity of this kind. Therefore, if i) the trader domiciled in another member state carries out commercial professional activities in the member state of domicile of the consumer or targets its activities to that member state by any other means (e.g. the internet); and ii) if the contract under dispute comes within the framework of these activities; the consumer can bring that trader before the courts of his or her own member state, even if the contract cannot be considered to be a distance contract due to the fact that it was signed in the trader's member state. In the main proceedings, an Austrian resident had taken steps to buy a vehicle over the internet from a vendor resident in Germany and had travelled to that country to take receipt of the vehicle and sign the contract. (FG/transl.fl)