The three kinds of consumer contract to which Section 4 applies

If analysis of the contract, and of the situations of the parties to it, survives the various tests just described, so as to qualify as a contract concluded by a consumer, it is next necessary to show that it falls within one of the three categories of contract set out in what is now Article 15(1). The first two categories are types of contract; the third is defined in terms of the manner of its making rather than its content.

Contracts of sale on instalment credit terms

The first of the three categories of contract identified in the Article, a contract for the sale of goods on instalment credit terms, will not be difficult to identify. The concept of the sale of goods should not be difficult to apply. Its uniform meaning is liable to include contracts of hire purchase, even though these are not strictly sales of goods at common law. It was held in Soc Bertrand v Paul Ott KG, that ‘instalment credit terms’ has an autonomous meaning which excluded payment by two bills of exchange. The reasoning was to the effect that those sophisticated enough to pay by bills of exchange did not require, and so stood outside, the protection of the Article. That may well be so; but as a cheque is, in English law, a bill of exchange, this decision should, perhaps, be treated with caution. Even so, if the price is paid in instalments but the buyer does not take possession until the last instalment has been paid, the sale is not regarded as being on instalment credit terms: instalments, perhaps, but not instalment credit.

Contracts made to finance the sale of goods

The second category of contract, identified in Article 15( 1 )(b), is a contract for a loan payable by instalments, or for any other form of credit, made to finance the sale of goods. When dealing with a contract of loan, repayable by instalments, or for other credit, made to finance the sale of goods, it appears that the purpose for which the loan was made is the crucial factor.[1] It is not clear whether this is confined to cases where the permitted use of the money advanced is stipulated as a term of the contract by the supplier of credit, or extends to any case where credit is obtained and is then used to purchase goods. The former is the preferable view; in the latter case the provider of credit would have no reason to suppose that the contract was a consumer one.

Contracts with those who pursue activities in or direct activities to a Lugano State

The third category of protected consumer contracts, stated in Article 15(1 )(c), has undergone more substantial alteration when compared with predecessor versions: this may be important when reading decisions concerned with the interpretation of an earlier legislative text. Its current component elements are that the supplier carries on commercial or professional activities in the Lugano State of the consumer’s domicile, or directs such activities to that State, or to several Lugano States including that one; and the contract falls within the scope of those activities.

Article 15(l)(c) does not require the contract in question to be one for goods or services. It opens with the words ‘in all other cases the contract ...’, which is not so limited, and which makes it far wider in material scope. Moreover, it is no longer necessary, as it once was, to ask where the consumer took the steps necessary to conclude the contract: the rule is stated in terms of the professional’s carrying on of activities in, or directing its activities to, the State in which the consumer has a domicile, or is at home. The provision is best approached in fairly general terms and then by an examination of the detail as this has been drawn out by the European Court.

Article 15(l)(c) appears to be targeted at those professional suppliers who project their activity, their availability as would-be contracting parties, into the consumer’s home State or actual home. It will cover those who carry on their business in person as well as those who act through agents, but may also extend to those whose activities -such as advertising their goods and services - do not include making contracts in the consumer’s home State. Its application to contracts made over the internet by persons using home computers or smartphones is tricky, for there is a balance to be struck between the interests of the individual consumer and the business of the professional. For though the internet made a modest contribution to consumer life a generation ago, its use by consumers to make contracts increased at a tremendous rate even before covid-19 supercharged it. The original version of what is now Article 15(1) (c) had as its paradigm the professional who traipsed the streets and knocked at the

B JURISDICTION ACCORDING TO LUGANO/BRUSSELS consumer’s door. This tended to mean that the consumer who stayed at home was liable to be privileged in a dispute with a professional who should have realised, in making a metaphorical journey to the consumer’s doorstep, that he might be forfeiting jurisdictional advantage. The sense in which Article 15(l)(c) is intended to operate is less immediately apparent when all parties stay - notionally - in their own corner and make contracts by remote communication. Take, for example, the case of a seller who maintains a website to which customers have access, such as an internet bookseller. On the footing that the website (wherever it may be thought of as being) can be accessed from the spare bedroom of an average English consumer, but also by a consumer from any other Lugano State, or by a consumer who is domiciled in a Lugano State but who is temporarily overseas, or by anyone wherever there is a mobile signal, the strain which is to be taken by Article 15(l)(c) is considerable.

There is no sense in trying to locate internet servers, and the like, not least because Article 15(l)(c) is concerned with how, not where, the contract is made. The most useful guidance was given in the joined cases of Pammer v Reederei Karl Schlutter & Co KG [2] and Hotel Alpenhof GmbH v Heller.19 In these cases an individual had booked a cruise and another a holiday, with a professional, using the internet to do so. Pammer, who was Austrian, had booked his voyage with a German shipping company through a German intermediary company, making his communications by internet. The shipping company denied that it pursued any professional or commercial activity in Austria. Heller, who was German, contracted with an Austrian hotelier, all communications being by email, Heller’s initial awareness of the hotel having come from its website. When Heller departed without settling his bill the hotel commenced proceedings in Austria. In each case the principal issue was whether the circumstances in which the contract was made brought it within what is now Article 15(l)(c). All spoke German.

The first question was whether the professionals had directed their activity to the home States of the consumers, and whether this required a conscious or deliberate targeting of (customers in) one or more States. By way of answering the question which it had framed, the Court held that it was not enough that the website was accessible by customers in or from their home States; what was required was that the professional have manifested its intention to establish commercial relations with consumers in the State in question, or in several States which included this one. The question was therefore whether the German shipping company had manifested its intention to deal with Austrian consumers; whether the Austrian hotelier had shown that it intended to deal with German consumers. The answer to that question was liable to be intensely fact-specific, and it was for the national court to find it. As to the evidence which would and would not help the national court to its answer, it is expedient to quote directly from the ruling:

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. ’

It is hard to quantify the guidance this actually gives.[3] The reference to currency is liable to be distorted by the fact that many Lugano States use the euro, but traders in those which do not will often express a price in, or offer a conversion into, euros. It would be odd if that were to amount to evidence that an English company had directed its activities to Austria but was not evidence that a German company had done likewise. It would be odd if the application of Article 15( 1 )(c) turned on whether a telephone number was stated with the +44 prefix, or whether the trader used co.uk rather than .com, or ,eu, for example, as the last part of its web address. Yet it is not obvious what else the European Court could have said by way of elaboration of what it means to direct activities and how this is to be shown.

Opinions will legitimately differ on the question whether this is the place to try to draw the limits of Article 15(l)(c). It is still tempting to say that a supplier directs its activities to every consumer who is enabled, without leaving the house, to download everything the supplier has made electronically available and to conduct all his communications in his own language. The suggestion that Article 15(l)(c) would not apply because (even if it is true) the consumer searched for the information, as distinct from his finding that it had been directed to his home State, is not convincing. The proposition that a professional does not direct his activities to a consumer in circumstances where he opens himself up to that jurisdiction, by making his availability to contract fully and immediately available to a consumer who does not get up from the kitchen table, is not convincing either.

The last point taken by the hotelier in Hotel Alpenhof GmbH v Heller was that the Article could not apply as the contract had not been concluded until the consumer arrived at the reception desk, handed over his credit card, and took his key. The response should have been that the place of making the contract was an irrelevance, not referred to in Article 15(l)(c). Unfortunately, the judgment rejected the point with the observation that the parties had become bound to each other by exchange of email. This encouraged some to interpret the judgment as limiting the contracts covered by Article 15(1)(c) to those concluded at a distance. This had to be corrected in Miihlleitner v Yusufi,n which confirmed the irrelevance of the place of making the contract.

The final point to consider is whether it is implicit - it is not explicit - in Article 15(l)(c) that the contract must have been made by the consumer as a result of the directing of activity to, or the pursuit of activity in, the consumer’s home State. The short answer, that the Article does not say so, and that such a requirement would be a challenging thing to read in, comes from Emrek v Sabranovic.M Whatever the merits of the point might otherwise have been, the need to demonstrate causation at the jurisdictional stage of proceedings which, in most cases, will be in actions for very modest sums, would have put the weaker party at a severe disadvantage; the Court did well to reject it. So long as the professional is shown to have directed its activity at the Lugano State in which the consumer has a domicile, the contract is liable to fall within Article 15( 1 )(c).

  • [1] In C-694/17 Pillar Securitisation Sari v Arnadottir EU:C:2019:345, [2019] 1 WLR 5285 it appears to have been supposed that credit advanced to finance a purchase of shares would come within this provision, though the judgment does not address the point specifically. 2 The Brussels Convention version was more concerned with showing that a specific invitation, or advertising, had been directed into the State of the consumer’s domicile. 3 SeeC-297/14 Hobohm v Benedikt Kampik Ltd & Co EU:C:2015:844, [2016] QB 616 on the relationship between the activity which is directed and the contract which is concluded. 4 C-180/06 Ilsinger v Schlank & Schick GmbH (in liq) [2009] ECR 1-3571, [50]. 5 On this, see the Opinion of the Advocate General in C-464/01 Bay Wa AG v Gruber [2005] ECR 1-439: the Court did not refer to the point. 6 Though the Article does not use the terminology of ‘professional’. 7 For an illustration, Oakleaf Conservatories Ltd v Weir [2013] EWHC 3197 (TCC).
  • [2] C-585/08, [2010] ECR 1-12527. 2 C-144/09, [2010] ECR 1-12527. 3 On a rather spartan-sounding freighter, notably short of the usual pleasurable diversions of cruising.
  • [3] Though it was applied in a perfectly satisfactory way in Cole v IVI Madrid SL (Birmingham District Registry, unreported, 24 Sept 2019). 2 Note that it is to the Lugano State (or States), rather than to the consumer’s actual home, that the activity needs to be directed. 3 C-190/11, EU:C:2012:542.
 
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