Prove it if you can? E-commerce and jurisdiction: the ECJ further completes the jigsaw in Emrek

As tweeted last week, the Court of Justice has clarified the scope of the consumer title of the Brussels-I Regulation in Case C-218/12 Emrek. In Spicheren, a town close to the German border, Mr Sabranovic sells second-hand motor vehicles. He had an internet site on which French telephone numbers and a German mobile telephone number were mentioned, together with the respective international codes. Mr Emrek, who resides in Saarbrücken (Germany) and who learned through acquaintances (not via the internet) of Mr Sabronovic’s business went there and purchased a second-hand motor vehicle.

Subsequently, Mr Emrek made claims against Mr Sabronovic under the warranty before the Amtsgericht (District Court) Saarbrücken. Mr Emrek took the view that, under Regulation No 44/2001, that court had jurisdiction to hear such an action. It was clear from the set-up of Mr Sabranovic’s website that his commercial activity was also directed to Germany. However, it was also clear that the contract that had been concluded was not the result of that direction: Mr Emrek had heard from the business by word of mouth, not the internet.  Must there be a causal link between the means employed to direct the commercial activity to the Member State of the consumer’s domicile, namely the internet site, and the conclusion of the contract with the consumer?

The Court held that requiring such causal link would raise questions of burden of proof. Difficulties related to proof of the existence of a causal link would tend to dissuade consumers from bringing actions before the courts of their domicile and would therefore weaken the protection of consumers pursued by the regulation. However if and when that causal link is in fact established, it would constitute strong evidence which may be taken into consideration by the national court to determine whether the activity of the professional trader is ‘directed at’ the Member State of the consumer’s domicile.

The Court’s judgment could have certainly swayed differently. There are – among other textual – reasons for arguing pro requiring a causal link between the activities directed at the consumer’s place of domicile, and the eventual contract. The ECJ pushes out the consumer protection boat yet a little further.

I can’t quite think of a pun to end this posting. I’ll just end it. Geert.