Case
(P) Peter resident in Barcelona, Spain would like to spend a sailing holiday with his family in Emden, Germany. When surfing the word wide web he spots the website www.hotel-emden.de of Hotel Strand (S). The website, which is in German, provides information on the hotel services, the rooms, the hotel's restaurant and wellness. Since the site doesn't contain a direct booking possibility P writes an email (the address is set out under "contact us") to the hotel asking for a reservationS provides P with further information by email so P and his family finally spent five days in the hotel. However, since P is extremely unhappy with the hotel's services he leaves without settling his bill. S sues P in Emden for payment of the outstanding amount of € 5,889. P does not want to travel to Emden for the court hearing and he doesn't know any German lawyers. He thinks that as he is a consumer he must be sued at her home town in Barcelona
Questions:
Can S sue P in Emden?
Lösungsskizze:
Brüssel 1a Regulation:
Articel 1
Articel 25
Articel 10 - 24
Articel 17
Consumer (+)
Professional (+)
a. sale of goods (-)
b. Loan (-)
c. all other cases
if yes then 18 (1) —> Spain (-)
if not discuss
no because: website with .de and contact us
Articel 4 (if no) defendencs domicil —> Spain
Articel 7 (1) (if no) contract-> service-> contract of service-> place of service —> Germany Emden
= Claimant´s choice of court —> multiple courts
_______________________________________________________________________
So it is questionable if S can sue P in Emden. To find a solution we have to check Brussel 1a to check where the competent court is.
We start by checking the Scope of the case
In this case we have a commercial matter because P booked a hotel room in S Hotel for 5 Days with his family.
Now we have to check the Prorogation of jurisdiction.
says, if the parties have agreed before to a place of jurisdiction in
a.) writing or evidence in writing
b.) in form which accords with practices which the parties have established between themselfes, or..
c.) in a form which is widely known in that kind of business cases.
than it should be the place they have discussed before.
As we know P and S have not discussed a place before. So we can exclude Articel 25 in that Case
After checking Articel 25 we have to check the Articel 10- 24 looking for a case that matches the circumstances of our case.
It is not a jurisdiction relating to insurance so we can exclude
Articel 10 - 16
It is not a a jurisdiction of individual employment contract so we can exclude
Articel 20 - 23
It is not a exclusive jurisdiction so we can exclude
Articel 24
It is a jurisdiction over consumer contract so we have to check
“… A contract concluded by a person, the consumer, for a purpose which can be regarded as being outside of his trade or profession, jursidiction shall be determined by this section…”
It is not:
a.) a contract of the sale of goods
b.) a contract for a loan repayable
c.) in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer’s domicile or, by any means, directs such activities to that Member State …
It is questionable if S has driceted his commercial activities to P in Spain.
S has a website with www.strandhotel.de. With the website ending .de it excluded that S directs his activity directly to consumer in other states because he only provides his website in Germany.
It could be the english phrase “contact us” that signals a direct activity to english speaking costumers.
“contact us” is not a direct activity to P in Spain. First because it is not in the language of P in Spain and second because in germany due to english influence “contact us” is also known under most of the inhabitants as an offer to reach out for a appointment of reservation.
Moreover it is not possible to reservate a room in the hotel of S online. Which also excludes the possibility of direct activities.
Therefore we can exclude that there are direct activities from S to P in Spain.
Because we exclude Articel 17 we have to check Articel 4 and Articel 7
Articel 4
“Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State”
P is domiciled in Spain so he can be sued in Spain.
Articel 7
A person domiciled in a Member State may be sued in another Member State
(1)
a. in matters relating to a contract, in the courts for the place of performance of the obligation in question;
b. for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:
in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided
So P can also be sued in Germany because the place of perfomance was Emden in Germany
So in Conclusion we can say that the Claimant has the choice between two countries and therefore two courts. Emden in Germany and Spain.
Thomas, resident in Barcelona, Spain is a professional teacher for sailing, who gives lessons around the world. One day, he gives three days of sailing lessons for a total amount of EUR 3,000 to Peter (P) who lives in Salzburg, Austria.P is a professional sailing athlete who is preparing for the Austrian championships. During the course in Barcelona, however, P has an accident and breaks his ankle. He blames T for it and demands damages.
Applicable law?
Competent Court?
Applicable Law:
Rome 2 —> Contract (-)
CISG —> Service (-)
Rome 1
Articel 3
Articel 5-8
Articel 4 (1) b.)
Service provided
Conclusion:
Spanish law has to be applied
Competent Court
Brussel 1a
Articel 18 f
Articel 4 Spain (claimance domicile)
Articel 7 Spain (
The place of jurisdiction is Spain
A. Applicable Law
The first question in that case is which law should be applied in that case.
It is questionable which law we should use to solve the case.
Rome 2:
It could be Rome two because we have a case of Compensation of Damages.
“Unless otherwise provided for in this Regulation, the law applicable to a “non-contractual obligation”
In that case we have a contractual obligation of two parties. Thomas offers sailing lessons woth 3000 Euros and Peter asked for the lessons.
CISG:
CISG can also excluded here because we have a contractual Obligation of services. Thomas provides sailing lessons so CISG will not apply in that case.
Rome 1:
Rome one seems to be the right choice of law in that case because of:
“This Regulation shall apply, in situations involving a conflict of laws, to contractual obligations in civil and commercial matters.”
In that specific case as already discussed we have a comercial contract between two professionals Thomas and Peter
As seen in the case Thomas and Peter havent agreed to any contractual obligations regarding which law applies, in case of damage or not fullfillment of the contract.
We can exclude Articel 5, 7 and 8 because it is non of the explained contract types ( Contracts of carriage, Insurance contracts,Individual employment contracts)
It could be
Articel 6
but “Without prejudice to Articles 5 and 7, a contract concluded by a natural person for a purpose which can be regarded as being outside his trade or profession (the consumer) with another person acting in the exercise of his trade or profession (the professional) shall be governed by the law of the country where the consumer has his habitual residence”
Because Peter and Thomas are both professionals in the field of sailing we can also exclude articel 6.
Therefore we have to check
Articel 4 Applicabale Law in the absence of choice
“To the extent that the law applicable to the contract has not been chosen in accordance with Article 3 and without prejudice to Articles 5 to 8, the law governing the contract shall be determined as follows”
b.) “a contract for the provision of services shall be governed by the law of the country where the service provider has his habitual residence”
—> So we can say that spanish law will be applied in that case because Thomas has his habitual residence in spain, Barcelona.
B. Which court is competent
Now we know, which law applies we have to figure out which court is compentent to apply the law
“This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal”
In this case we have a commercial contract between Peter and Thomas.
Therefore we have to check if
The parties have agreed before to any court applicable in the contract in
a. Written form
b. in form they usually have
c. in form that is common in such kind of business/ contract
As we have seen before the parties have not agreed to any place or law that will be applied in the case of contractual damage.
Because they have not decided we have to look if any of the circumstances in articel 10 - 24 (exclusive) fits in the case of Thomas and Peter
We can Exclude
Articel 10 - 16 Insurance
Articel 20 - 23 Employment
Articel 24 exclusive jurisdiction
What we should check is
Articel 17 - 19 Jurisdiction on Consumer contracts
But as we have already discussed before it is not consumer contract:
“In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this Section”
Both Peter and Thomas are professionals in the field of sailing and therefore articel 17 does not apply and Articel 18 and 19 not as well.
In conclusion we have to check the general provision to see which court is applied in that case
“Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State. “
That means that the state Peter can Sue Thomas is Spain because his Domicile is in Spain
“A person domiciled in a Member State may be sued in another Member State:
(a) in matters relating to a contract, in the courts for the place of performance of the obligation in question;
(b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:
in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided”
Because the place of performance of the service in our case is Barcelona Spain.
—> So the only place where Thomas can sue Peter is Spain due to articel 4 and 7 of Rome 1 !
Last changed4 months ago