I reviewed the AG’s Opinion in C-296/20 Commerzbank here. The CJEU held a few weeks back, rejecting the AG’s main proposal and instead following him on the subsidiary argument – I lean towards the AG’s first option. For the consumer section, it now suffices the international element surfaces only after the contract has been concluded, provided of course (I am assuming; the CJEU refers to the case but is not quite clear) the contract at issue meets with the Pammer Alpenhof criteria: the business concerned need not necessarily actively pursue a commercial activity in the State in which the consumer is now domiciled, yet its organisation of operations and marketing is such as to meet the ‘directed at’ criteria of the consumer section.
It is to be assumed that the Court’s flexible interpretation (for which it relies to a large degree on mBank) of the international element to this far-reaching extent, only applies given the protective intent of Lugano’s (and Brussels Ia’s) consumer, potentially employees’ and insurance title. It carries far les authority for B2B contracts I would suggest.
EU Private International Law, 3rd ed. 2021, 2.222 ff.