GMW: Jurisdiction over international consumer purchases | ACCESS
2014-01-27 | By Lisa-Marie Komp & Christiaan Mensink
First published in ACCESS Winter 2013 e-zine
Dutch consumer case makes national press in Austria.
Which court has jurisdiction over consumer disputes abroad? A recent ruling by the Austrian Supreme Court of Justice made the national press in Austria. GMW Advocaten represented the Dutch consumer involved in the case.
The plaintiff was an Austrian estate agent, who charged the Dutch consumer a commission of €200,000 for mediating in the sale of his Austrian country estate. Our client was not willing to pay this sum, because he had never issued instructions to mediate, nor had he agreed to pay commission. In this case it had to be decided whether the Austrian court had jurisdiction based on the EEX Regulation, as the case concerned a dispute between parties living in different countries.
The Regulation stipulates that a consumer party may only be summoned before the court of the country where he is domiciled, if the business party has directed its -activities at that country. Therefore, the issue was whether the Austrian estate agent had directed its activities abroad or whether it is exclusively an Austrian firm without any international activities. In the latter case, the Austrian court has juris-diction and in the former case, only the Dutch court.
Examples of when the condition has been met are:
- advertising (flyers, television etc.) abroad;
- targeting other countries through a website (many languages/ f-oreign domain name).
The estate agency was approached by a party interested in buying the estate. An employee of which telephoned the Austrian estate. As the Dutch owner was not present, the household staff gave the Dutch mobile number of the owner to the estate agency’s employee. The employee contacted the owner and made a proposal for the purchase of the estate on behalf of the interested party. This telephone call initiated the sale of the estate.
Austria’s highest court considered that “merely making telephone contact in the consumer’s country of residence” suffices to be considered a commercial activity directed at that (foreign) country. With this statement, the Austrian court lowered the threshold for commercial activities in the consumer’s favour. Thus, simply telephoning a Dutch mobile phone was sufficient to constitute “a commercial measure directed at the Netherlands”. Consequently, the Austrian court did not have jurisdiction over the case, as the consumer can only be summoned before a Dutch court.
The estate agent will therefore have to commence proceedings in the Netherlands, which we consider to be highly unlikely.
The ruling is also significant for the Netherlands as it concerns the interpretation of a European regu-lation, which also applies here.
See the full version of this article on www.legalexpatdesk.nl.