This post was written by Felix M. Wilke, University of Bayreuth, Germany.
The most relevant aspects were squarely in the sights of European Court of Justice. As it states in para 53 of the judgment: “relating to the predictability of the rules of jurisdiction and to the risk that consumers might ‘take the forum of protection with them’, it must be borne in mind that…” But the Court proceeds to brush aside these valid concerns in merely one and a half, partially enigmatic sentences. The rest of the judgment consists in more formal arguments that fail to engage with the interests at stake.
How Could Consumers Take the Forum of Protection with Them?
But let us start at the beginning. Case C-296/20, Commerzbank v. E.O., started in German courts in 2016 when a consumer had not settled his current account with a branch of Commerzbank in Dresden (Germany). The bank alleged a debit balance in its favour of almost 5.000 € and sued the consumer before the Local Court of Dresden. At the time of conclusion of the contract, the consumer had had his domicile in Dresden as well. In the meantime, however, he had moved to Switzerland. The Local Court dismissed the action due to lack of jurisdiction. The Regional Court of Dresden upheld this judgment. On appeal, the German Federal Supreme Court decided to refer two questions to the Court of Justice regarding the application of the rules for jurisdiction over consumer contracts of the Lugano II Convention in situations where a consumer relocates to another State bound by the Convention after the conclusion of a contract. The Federal Supreme Court later withdrew one of the questions in light of the Court of Justice’s decision in mBank.
The case, thus, essentially is about whether (or, at least, under which additional conditions) a consumer can rely on the forum of protection of Article 16(2) Lugano II even after moving abroad after the conclusion of the contract. Under that provision, which of course corresponds to Article 18(2) Brussels Ibis Regulation, the courts of the State in which the consumer is domiciled have exclusive jurisdiction concerning contracts meeting the requirements of Article 15 Lugano II. “Domicile” in Article 18(2) Brussels I bis / Article 16(2) Lugano II designates the consumer’s domicile at the date on which the court action is brought (mBank). Hence, a change of the consumer’s domicile would force the other party to sue wherever the consumer’s new domicile is, as, in particular, the application of Article 5(1) Lugano II / Article 7(1) Brussels I bis would be barred. In this sense, consumers would not only take their belongings with them when they move, but also the forum of protection.
The Circumstances Surrounding the Conclusion of the Contract: No Way Out
For jurisdictional instruments based on the idea of predictability, this consequence is not obviously appropriate. The only way to avoid it seems to lie in Art. 15 Lugano II, as the temporal dimension of Article 16(2) Lugano II had already been set in stone in mBank. The German Federal Supreme Court indicated that it wanted to read Article 15(1)(c) Lugano II – the category of contracts where the trader “pursues” or “directs” its activities in/to the State of the consumer’s domicile – in such a way as to condition its application on the trader’s intention to establish commercial relations with consumers from one or more other States. In situations where the trader and the consumer have a domicile in the same State at the conclusion of the contract, Article 15 Lugano II would not (regularly) apply. It should be noted that this approach would not help traders who do conclude a consumer contract in a cross-border situation and whose contractual partner then relocates to yet another (Contracting/Member) State. A more general way out would have been to condition Article 16(2) Lugano II upon the trader pursuing his trade or profession in the State of the consumer’s new domicile or directing this activity to it. This, in fact, was the gist of the question withdrawn later because of mBank. In my opinion, however, the answer was not necessarily preordained – a view apparently shared by Advocate General Campos Sánchez-Bordona. He proposed a quite similar additional criterion as an alternative to his main opinion in Commerzbank, having pointed out that the Court had avoided to face this issue by reformulating the questions in mBank in a rather restrictive manner.
The Court now seems to close the door to such approaches. The judgment is limited to the interpretation of Article 15(1)(c) Lugano II for situations of initially purely internal consumer contracts. The proposal by the Advocate General just mentioned does not appear anywhere. The Court relies, first, on the wording of the provision, noting that it contains no indication of any additional condition. This comes as no surprise, for otherwise there would not really have been much to refer to the Court. Second, the Court talks about its case-law concerning consumer jurisdiction pursuant to Brussels I (bis), including mBank. Indeed, the Court appears to have had no qualms about applying the pertinent provisions to circumstances that began as purely internal situations. But it never faced the present question head-on because it was always concerned with special features of the other cases.
The Court also refers to Article 17(3) Lugano II, noting that it presupposes a purely internal situation at the time of the conclusion of the contract. The nod to the Advocate’s General opinion in this context (para 51) strikes me as disingenuous (or sloppy), though. For the Advocate General actually concluded that Article 17(3) Lugano II cannot be used as an argument in favour of the interpretation preferred by the Court.
The (Remaining) Issue of Predictability
Finally, the Court addresses the lingering issue of predictability. I am at a loss what to make of its point that “the rule of the jurisdiction of the court [actually: the courts of the State] of the consumer’s domicile, notwithstanding any change of domicile, is … the result of the process of legislative integration”. It seems to be an obvious petition principii. By the way, the German version has “normative integration” here, which arguably is less circular but also opaquer. The following argument is much easier to understand and somewhat more persuasive: International jurisdiction of the courts of the consumer’s (current) domicile corresponds to the general rule of Article 2(1) Lugano II (Article 4(1) Brussels I bis). The Court seems to say that having to sue at the defendant’s domicile can never be an unpredictable rule as actor sequitur forum rei is the basic principle of Lugano II. Yet the Court fails to mention that Art. 2(1) Lugano II does not exclude jurisdiction under Article 5 Lugano II as Article 16(2) Lugano II does. This could be a relevant difference.
Even if one accepts this final line of reasoning and thus considers Commerzbank to have come out the right way, there is one more layer to the problem: Article 16(1) Lugano II. Here, the consumer has a forum actoris. Arguments referring to Article 2(1) Lugano II do not work in this context. How should a trader foresee that a consumer can sue him before the courts of the latter’s new domicile? I still think the answer should be: only if the trader pursues his trade or profession in the State of the consumer’s new domicile or directs this activity to it. Then, the trader at least has an abstract idea that, one day, he might have to appear before the Courts of that State. But, after Commerzbank, this would mean to interpret Articles 15(1)(c), 16(1) Lugano II differently than Articles 15(1)(c), 16(2) Lugano II. In light of the Court’s arguments outlined above, this has not exactly become more likely.
The decision seems to ignore the historic intention of the drafters of the Lugano (and Brussels) Convention:
See the Pocar report (https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52009XG1223(04)&from=EN) regarding the Lugano Convention, para. 82:
“The Convention also extends the scope of the rules on consumer contracts as regards the connection with the State in which a consumer is domiciled. It does not innovate with regard to the sale of goods on instalment credit terms or loans repayable by instalments, where there is no need for proximity between the contract and the State in which the consumer is domiciled. For other contracts, however, the extension of protection to all consumer contracts, and the extension of the forum actoris that that brings with it, would not be justified without a factor connecting the other contracting party and the State of domicile of the consumer. The 1988 Convention required certain links in the case of contracts for the supply of goods or services – the requirement that in the State of the consumer’s domicile the conclusion of the contract was preceded by a specific invitation addressed to the consumer or by advertising, and the requirement that the consumer took in that State the steps necessary for the conclusion of the contract – but the ad hoc working party considered that these were insufficient, and unsuited to the present requirements of consumer protection. The new Convention therefore requires that the commercial or professional activities of the person with whom the consumer concludes a contract be pursued in the State of the consumer’s domicile, or that they be directed to that State or to several States including that State.”
See also the Schlosser report (https://op.europa.eu/en/publication-detail/-/publication/8ae9647d-0ed3-4eef-abd3-4b48961bb609/language-en) regarding the Brussels Convention, para. 158: consumer contracts other than those referred to in paragraph 157 are subject to the special provisions only if there is a sufficiently strong connection with the place where the consumer is domiciled.
The Court does address some of your concerns, but concludes that statements in such a report could not “override the wording” of the legal instrument. That part of the decision is yet another instance where I find the reasoning lacking…
Modestly, my view takes some elements form the old, classic and shining contributions of Mr Pierre Lalive (1977) and Pierre Mayer (in his handbook). One should distinguish between the “factual situation” (the consumer contract) and the “dispute” (the litigation). Relativity of Private international law arrives also here: in Commerrzbank, the factual situation had no foreign elements, but the dispute that came later was “international” or “cross-border” because of the change of domicile of the consumer to Switzerland. Having said that, it is clear that the Lugano Convention, -as well as the Brussles Ia Regulation-, deals with only with cross-border “disputes”. They do not deal with the “factual situation”. This was not cross-border. Accordingly, the conclusion of the ECJ was correct (in my view): at the time of the dispute, this was “cross-border” and the ground of jurisdiction based on actor sequitur forum rei was totally predictable for both parties. Albert Einstein still rules (also in Private international Law).
Dear Javier, no need for modesty. 🙂 I certainly agree with parts of your analysis: I don’t have any doubt that the dispute is a cross-border dispute and that, as a consequence, the Lugano Convention must apply, excluding national grounds of jurisdiction. I also agree that the idea of “actor sequitur forum rei” is one of the best arguments for the solution of the CJEU. I am just not convinced that it is enough to justify the exclusion of special jurisdiction under Art. 5 Lugano; maybe this exclusion was unpredictable?
Most importantly, though: May I ask whether you would also favor applying Art. 16(1) Lugano Convention in such a situation, i.e. allowing the consumer to sue the trader in any new domicile?
Dear Felix. Thank you very much for the debate and your interesting view. Nothing new under the sun, though: Art. 3.b Maintenance Regulation 4/2009 declares that the creditor may sue in the court of his habitual residence. In the event htat the habitual residence changes, the creditor may sue in the courts of his news habitual residence. The alleged weker party has this privilege in European Private international law.: he takes his domicile / habitual residence with him in case of moving. And takes also with him the right to sue “at (his new) home”. In terms of predictability it is unfair to the defendant, I modestly think. Nevertheless it is the way that European PIL tries to compensate the weaker party…. Conclusion: I thing that the ECJ would support that Art. 16.1 Lugano convention also applies in case of a new domicle of the consumer.
Excellent point. I will readily admit I hadn’t yet taken Art. 3(b) into consideration.
My – somewhat predictable – retort would have to be that there are differences between civil and commercial matters and maintenance matters that could justify diverging outcomes. In particular, I would suggest that Art. 3 Maintenance Regulation extends to all maintenance matters whereas Art. 15 Lugano Convention/Art. 17 Brussels Ibis set up an elaborate framework encompassing only a part of all contracts involving a consumer and a trader. And a guiding principle for the latter, to me, seems to be the idea that the trader has some control over where he will potentially have to appear in court: by pursuing his activities there or by directing them at that state.
There is no doubt about what the consequence of Commerzbank + mBank is: article 16.1 applies and the professionals will have to sue the consumer, and can be sued by the consumer, before the courts of his/her new domicile. To my mind, there is no doubt either that this does not correspond to article 15.1c). @Javier Carrascosa: I would say the conditions therein imposed for a contract to qualify as a consumer contract under the section make a big difference compared to the maintenance regulation rule.
A.Ares: the consumer domicile is the rule and the creditor of maintenance domicile is also the rule. Both weaker parties….. The “social” orientation of the ECJ is clear…. The consumer and the creditor (in maintenance disputes) have been protected to a very wide extent: both may change domicile and both may “take his domicile with them” in order to sue…. and to be sued…