In connection with the development of cross-border sales, the number of potential dispute situations between Czech traders on the one hand and foreign consumers on the other is also growing. For these reasons, among others, it may be of interest to examine more closely the legal regulation of jurisdiction of courts within the European Union, specifically the conditions under which a Czech trader may be sued in one of the other Member States of the European Union.

This issue is primarily governed by Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the so-called Brussels I Regulation), which entered into force on 15/1/2015. This Regulation replaced the original Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, which regulated the same issue (and in a very similar manner). The provisions of that Regulation were the subject of numerous interpretations by the Court of Justice of the EU.

Article 18 of the Brussels I Regulation provides that “a consumer may bring proceedings against the other party to a contract (trader) either in the courts of the Member State in which that party is domiciled or, regardless of the domicile of the other party, in the courts for the place where the consumer is domiciled.” However, this only applies if the condition set out in Article 17(1)(c) of the Regulation is met, namely that the contract was concluded “with a person who pursues commercial or professional activities in the Member State of the consumer’s domicile” (that is, the case where a Czech trader has a branch abroad), “or, by any means, directs such activities to that Member State…”. It follows from this provision that for a Czech trader to be sued in another EU Member State, it is sufficient that the Czech trader’s activities are directed to the territory of such a Member State.

The question of interpretation of when a trader’s activities are directed to the territory of a particular Member State has been the subject of numerous judgments of the Court of Justice of the EU (formerly the European Court of Justice). Those judgments then provide certain guidance for practice.

In the joined cases Peter Pammer v. Reederei Karl Schlüter GmbH & Co KG (C-585/08) and Hotel Alpenhof GesmbH v. Oliver Heller (C-144/09), the Court of Justice of the EU held that for the assessment of the question at issue “it is necessary to ascertain whether, before the conclusion of any contract with the consumer… it is apparent from the trader’s overall activity that the trader was envisaging doing business with consumers domiciled in one or more Member States, including the Member State of the consumer’s domicile, in the sense that it was minded to conclude a contract with them.” Furthermore, the court stated in that judgment that “the following matters, to which the list is not exhaustive, may constitute evidence from which it may be concluded that the trader’s activity is directed to the Member State of the consumer’s domicile: 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. On the other hand, a mere trader’s website or that of an intermediary accessible in the Member State in which the consumer is domiciled is insufficient. The same is true of mention of an email address and of other contact details, or of use of a language or currency which is the language or currency generally used in the Member State in which the trader is established.”

In its judgment of 6 September 2012 in Daniela Mühlleitner v. Ahmad Yusufi and Wadat Yusufi (C 190/11), the Court of Justice of the EU took the view that it is not required that the contract between the consumer and the trader be concluded at a distance. This means that even the fact that a foreign consumer travels to the Czech Republic and concludes a contract with a Czech trader at his establishment on the territory of the Czech Republic does not entirely preclude a situation where such a Czech trader may be sued abroad (in the place of the consumer’s domicile), provided that in his business activities he “directs” them to such a Member State.

In Lokman Emrek v. Vlado Sabranovic (C-218/12), the Court of Justice of the EU then held that for a finding that a trader directs his activities to the territory of a particular other Member State, the existence of “a causal connection between the means employed to direct the commercial or professional activity to the Member State of the consumer’s domicile and the conclusion of the contract with that consumer” is not required. However, the existence of such a causal connection indicates a connection between the contract and such activity." This concerned a case where a customer concluded a written contract with a trader at the trader’s establishment, without knowing that the trader was also directing his activities on the internet to the consumer’s home country.

It can therefore be concluded that if a Czech trader concludes a contract with a consumer from another EU Member State, he may in many cases also be sued by such a consumer in that other Member State.

Josef Aujezdský

Law Firm Mašek, Kočí, Aujezdský www.e-Advokacie.cz – on-line legal advice

This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the Association for Electronic Commerce (APEK) as legal newsletter No 4/2015 intended for members of this association.

This text was translated from Czech to English using an AI translator.