Neodyum Miknatis
amateur porn
implant
olabahis
Casino Siteleri
Kayseri escort
canli poker siteleri kolaybet meritslot
escort antalya
istanbul escort
sirinevler escort
antalya eskort bayan
brazzers
Short Reads

Who is a consumer? The dynamic approach to the concept of 'consumer' under the Brussels I Regulation

Who is a consumer? The dynamic approach to the concept of 'consumer' u

Who is a consumer? The dynamic approach to the concept of 'consumer' under the Brussels I Regulation

16.02.2018 EU law

On 25 January 2018, the European Court of Justice ("ECJ") rendered a preliminary ruling in a case between Austrian citizen Maximilian Schrems and online social network Facebook. The ruling is important for two reasons. First, the ECJ approved a dynamic approach to the concept of 'consumer' under the Brussels I Regulation. Secondly, the ECJ clarified that the special consumer forum can only be invoked by the specific consumer who is party to the contractual relationship with the professional trader.

Facts

Mr Schrems is an Austrian citizen and a prominent privacy activist. In 2008, Schrems started using a Facebook account exclusively for private purposes (e.g. for posting personal photos and messages). In 2010, he also started using Facebook to promote public activities such as his participation in panel debates and media appearances. The primary aim of Schrems' public activities was to apply pressure to force Facebook to improve its allegedly flawed data protection policies.

As part of his crusade against Facebook, Schrems initiated a civil action against Facebook before the court in his hometown of Vienna, Austria in 2015. The jurisdictional basis for this action was Article 16 of the Brussels I Regulation, which provides that '[a] consumer may bring proceedings against the other party to a contract either in the courts of the Member State in which that party is domiciled or in the courts for the place where the consumer is domiciled.' Schrems started the civil action not only for himself but also on behalf of seven consumers domiciled in Austria, Germany and India who had assigned their claims to Schrems.

Before answering Schrems' allegations on the merits, Facebook raised two jurisdictional challenges arguing that the Vienna court was not competent to hear the case. First, it argued that Schrems had lost his status as ‘consumer’ because he had used Facebook as a 'professional' (e.g. by posting posts about his lectures, books and fundraising efforts). Secondly, Facebook disputed that the special jurisdictional rule for consumer cases could not be invoked for claims which were assigned to Schrems by other consumers, as the mere act of assigning them to Schrems would in effect create a new head of jurisdiction for those claims.

On appeal, the case eventually reached the Supreme Court of Austria, which referred these jurisdictional questions to the ECJ.

Who is a consumer?

As to the first question, the ECJ reiterated that the special rule on jurisdiction for consumer cases is a derogation from the general rule that defendants should be sued before the courts of their domicile. Therefore, this exception should be interpreted strictly. The ECJ ruled that a strict interpretation of the concept of 'consumer' entails that it:

'is necessary, in particular, to take into account, as far as concerns services of a digital social network which are intended to be used over a long period of time, subsequent changes in the use which is made of those services.'

Consequently, the ECJ approved of a 'dynamic' concept of the notion of consumer, which may entail that a person who initially concluded a contract in the capacity of a consumer may lose that status if:

'the predominately non-professional use of those services' subsequently becomes 'predominately professional'.

This dynamic view of the concept of 'consumer' appears on the face of it to be a victory for Facebook. However, the ECJ went on to explain that the expertise which a person may acquire in a certain field (such as privacy rules for Mr Schrems) cannot deprive that person of the status of 'consumer'. If that were the case, consumers would not be able to efficiently organise themselves in order to safeguard their interests. Consequently, the ECJ ruled that in this case Schrems' activities such as publishing books, lecturing or fundraising would not have the effect of him losing the status of a consumer.

Can Schrems invoke the special consumer forum for the assigned claims?

As for the second jurisdictional challenge from Facebook, the ECJ recalled that the special jurisdictional rule for consumer cases 'is inspired by the concern to protect the consumer as the party deemed to be economically weaker and less experienced in legal matters than the other party to the contract'. That rationale leads to the conclusion that only the consumer who is a party to the original contract can invoke this jurisdictional rule. To sum up: although Schrems can invoke the consumer forum for his personal claim, he cannot do so for the claims which were assigned to him by consumers who are not domiciled in Vienna. Indeed, as the ECJ succinctly ruled: 'the assignment of claims cannot, in itself, have an impact on the determination of the court having jurisdiction'.

Conclusion

The judgment clarifies that a person who was a consumer at the time of a contract’s conclusion may lose that status if the subsequent use of the contracted service becomes professional by nature. This dynamic concept of the notion of 'consumer' may potentially also be used as a defence by companies in consumer litigation relating to non-jurisdictional issues, such as disputes about unfair contract terms or unfair trading practices. Further, the ECJ – unsurprisingly – stated that the Brussels I Regulation is an insufficient basis for cross-border EU collective actions. However, this may change in the future as new models of collective redress in consumer matters are at the centre of heated debate at a European level. Readers interested in this debate are referred to A-G Bobek's Opinion before the judgment.

What does this judgment mean for Maximillian Schrems? The case against Facebook in Vienna will continue on the merits – although it will not be a collective action as the court will only be competent to rule on his personal claim and not on the assigned claims.

Related news

05.11.2020 NL law
Jurisdictional hide & seek: merger thresholds and buyer joint ventures

Short Reads - Companies beware: the turnover of a joint venture buying a target is not necessarily decisive for determining whether the EU merger thresholds are met. The General Court fully upheld the Commission’s 2017 decision prohibiting the joint acquisition of Cemex’s Hungarian and Croatian subsidiaries by cement companies HeidelbergCement and Schwen Zement through their full-function joint venture (JV).

Read more

11.11.2020 EU law
Innovatie en staatssteun. Het CBb leidt de weg bij de belangrijke definities industrieel onderzoek en experimentele ontwikkeling

Short Reads - Het College van Beroep voor het bedrijfsleven (“CBb”) heeft op 6 oktober 2020 in een subsidiegeschil nadere invulling gegeven aan het onderscheid tussen “industrieel onderzoek” en “experimentele ontwikkeling”. Dit onderscheid staat centraal in nationale subsidieregelingen en Europese staatssteunregels die overheidsinvesteringen in onderzoek, ontwikkeling en innovatie (“O&O&I”) mogelijk moeten maken.

Read more

05.11.2020 NL law
General Court confirms: no proof, no dawn raid

Short Reads - The Commission should think twice before conducting a dawn raid. The General Court partially annulled three Commission decisions ordering dawn raids at the premises of French supermarkets for a lack of sufficiently strong evidence with regard to one of the suspected anticompetitive practices. In addition, the General Court clarified that interviews held with suppliers prior to the issuing of a dawn raid decision can be used as evidence, even when these interviews have not been recorded.

Read more

05.11.2020 NL law
Belgian prohibition on abuse of economic dependence comes into force and new fining guidelines

Short Reads - In 2019, Belgium introduced legislation banning abuse in relationships between companies where there is no dominant position, but rather a position of economic dependence. The act entered into force on 22 August 2020. This category of restrictive practice applies alongside the existing prohibitions on cartels and abuse of a dominant position. It opens up new opportunities but also new threats for companies that are not in a dominant position.

Read more

05.11.2020 NL law
This article has FIVE stars! New Dutch consumer rules to curb fake reviews

Short Reads - Consumers often rely on online reviews to decide what bike to buy, where to eat or what article to read. But what if those reviews are fake? New Dutch rules were announced on 23 October 2020 seeking to ensure a higher level of consumer protection online. These rules mean more obligations for online traders, and potentially high fines if they get it wrong. For example, traders should implement procedures to ensure that published reviews originate from consumers who have genuinely used the product.

Read more