In his Opinion in C-774/22 JX v FTI Touristik, Advocate General Emiliou in my opinion is spot on for both core elements of the case. A consumer domiciled in Germany issues a claim against a tour operator also established in Germany in relation to a contract for a package of travel services booked by that consumer for a trip abroad. Does Brussels Ia apply and does the consumer title of the Regulation assign territorial as well as national jurisdiction?
The trip is sold as a package holiday. That is relevant, for the consumer title does not apply to mere contracts of transport. The consumer in the case at issue suggests that the operator failed in its duties under the Package Travel Directive to inform ia re visa requirements and brings a case in his domicile, Nuremberg (as opposed to Munich, the defendant’s domicile).
The AG is absolutely right to spend a mere two paras on the territorial jurisdiction issue. The answer follows from the very wording of the consumer title. (18):
The referring court’s doubts concerning the function of the forum actoris rule for consumers call for a swift response. It stems from the very wording of Article 18(1) of the Brussels I bis Regulation. A comparison of the two provisions it contains is enlightening in that regard. The forum rei rule refers to the ‘courts of the Member State’ in which the professional is domiciled. By contrast, the forum actoris rule refers to the ‘courts for the place’ where the consumer is domiciled. That terminological difference is not trivial. It is designed precisely to indicate that, whereas the first rule merely confers international jurisdiction on the courts system of the designated State, taken as a whole, the second rule gives both international and territorial jurisdiction to the court for the locality of the consumer’s domicile, irrespective of the allocation of jurisdiction otherwise provided for by the rules of procedure of that State.
On the next issue, the international element, the AG refers to the discussion in German scholarship on ‘false internal cases’ (unechteInlandsfälle). Does the foreign destination of the trip give the contractual relationship an international character? (29) ff he finds support in the broad conception of the international element in BIa generally. Owusu of course, Lindner, ZN v Bulgarian Consulate, IRnova and most recently Inkreal are all relevant authority.
(33) The AG refers to some clear examples of what the majority view would call unechteInlandsfälle which without a doubt however are caught by Brussels Ia:
For instance, where a court of a Member State is called upon to determine a case which, on the one hand, involves two litigants domiciled in that State but, on the other, relates to a tort that took place abroad, or the tenancy of an immovable property located in another country, the Brussels I bis Regulation applies.
Emiliou AG is not a fan of ZN v Bulgarian Consulate not because it viewed the case as being international but rather because it relies too much on the definition of ‘international’ in the European Order for Payment Regulation 1896/2006 (respective domiciles of the parties and the seat of the court seised). (38-39)
On the one hand, Regulation No 1896/2006 was adopted to tackle the difficulties faced by creditors seeking to recover uncontested claims from debtors in other Member States. It is aimed at simplifying and speeding up the recovery of such claims, through the creation of a uniform procedure allowing a creditor to obtain, from a court of a Member State, a judicial decision on such a claim, which can easily be enforced in the Member State where the debtor’s assets are located, while guaranteeing a level playing field in terms of rights of defence throughout the European Union. The definition of ‘cross-border case’ given in that regulation – based on the respective domiciles of the parties and the seat of the court seised – has a certain logic in that context. Where the parties are domiciled in the same State, the remedies provided by the courts of that State, under its procedural law, are usually sufficient to ensure that the creditor swiftly recovers his or her claim. Therefore, the procedure laid down in that regulation is not necessary.
On the other hand, the Brussels I bis Regulation purports to unify the rules of conflicts of jurisdiction in civil and commercial matters. That definition is too narrow and, thus, ill-suited for that purpose. As explained in points 32 and 33 above, questions of international jurisdiction may arise even where the litigants are domiciled in the same Member State and the courts of that State are seised. Moreover, that instrument also contains rules on recognition and enforcement of judgments given by the courts of the Member States. To be fit for purpose, those rules must apply whenever the authorities of a Member State are required to recognise or enforce a decision delivered by a court of another Member State, even where it concerns an internal dispute between two persons domiciled in the latter State. That definition also does not accommodate that situation.
(41) the AG insists the CJEU no longer refer to the OFP Regulation in interpreting Brussels Ia:
I urge the Court to refrain, in the future, from referring to Regulation No 1896/2006 in that context. Should the Court wish to draw inspiration from, and to ensure consistency with, other instruments on that issue, [Rome I and Rome II] fit the bill better, as will be seen below.
(I have in the past voiced concern with too much BIa /RI and II parallel as has the CJEU itself in Kainz).
More in general though and away from purposive construction in light of other PIL instruments, the AG opines straightforwardly that the destination of the trip constitutes a relevant ‘international element’ for the purposes of BIa.
The place of destination of the trip is also the place where, under the package travel contract, (most of) the services were provided or should have been provided to the traveller (the flight would land nearby, the hotel be situated there, and so on). In other words, that contract was, or should have been, essentially performed there. In my view, where a court of a Member State is called upon to determine a dispute related to the performance of a contract, and the place of performance is in a foreign country, that factor is ‘such as to raise questions relating to the determination of the international jurisdiction of that court’. (Reference to Richard de la Tour AG in Inkreal).
CJEU Lindner at the jurisdictional level echoes in (45) in the AG’s reference to Rome I:
An analogy can also be made, in my view, with the Rome I Regulation and the relevant case-law of the Court. Similar to the Brussels I bis Regulation with respect to jurisdiction, that instrument determines the law applicable to a contract where the situation ‘involv[es] a conflict of laws’. In that regard, it stems from the case law of the Court that the rules of the Rome I Regulation are applicable to any contractual relationship with a ‘foreign element’. Indeed, it is only where such a contract has connections with a country (or countries) other than that of the court seised that that contract could potentially be governed by different, conflicting national laws, and that court may wonder which law to apply in order to resolve a dispute. Pursuant to the same case law, that concept of ‘foreign element’ is not limited to the respective domiciles of the contracting parties. The fact that the contract is to be performed in another country constitutes such an ‘element’. A connection of that kind obviously ‘involv[es] a conflict of laws’. The court seised can contemplate the possibility that the law of the country of performance could apply instead of its own. [Much appreciated reference in footnote to the 2nd ed of the Handbook, 2016, GAVC]. Thus, the rules of that regulation are necessary to resolve that conflict.
The somewhat convoluted reasoning by which the CJEU came to international element in Maletic (where the Court could just as well simply had referred to the foreign destination of the trip) is explained by the AG (49) by the fact that the real difficulty in that case was on which party to anchor the forum solutionis analysis.
(56) In further support comes Article 18(1)s’ ‘regardless of the domicile of the other party’, clearly designed with third States parties in mind, is broad enough to capture the situation where the supplier is domiciled in the same the Member State as the consumer.
Geert.
EU Private International Law, 4th ed 2024, 2.22 ff and 2.233 ff.
gavc law - geert van calster 